House Bill 327 (AS PASSED HOUSE AND SENATE)
By: Representatives Leverett of the 123rd, Efstration of the 104th, Gunter of the 8th, Reeves
of the 99th, Oliver of the 84th, and others
A BILL TO BE ENTITLED
AN ACT
To amend Chapter 1 of Title 7 of the Official Code of Georgia Annotated, relating to
financial institutions, so as to provide for the appointment of a trust director regarding certain
estates; to update certain fiduciary provisions; to amend Chapter 6B of Title 10 of the
Official Code of Georgia Annotated, relating to Georgia power of attorney, so as to provide
for certain delegations to powers of attorney; to amend Code Section 15-9-127 of the Official
Code of Georgia Annotated, relating to concurrent jurisdiction with superior courts and
probate court jurisdiction, so as to provide for service of process regarding probate
proceedings; to amend Title 19 of the Official Code of Georgia Annotated, relating to
domestic relations, so as to provide for parental powers and rights regarding children born
out of wedlock or from methods of assisted reproduction; to provide for superior court
jurisdiction regarding support orders; to amend Code Section 24-12-21 of the Official Code
of Georgia Annotated, relating to disclosure of AIDS confidential information, so as to
provide for the dissemination of certain information regarding the estate of a person with
AIDS; to amend Title 29 of the Official Code of Georgia Annotated, relating to guardian and
ward, so as to increase the amount of moneys distributed under probate court jurisdiction in
cases of minors and incapacitated persons; to revise provisions regarding the compensation
for legal counsel or guardian ad litem; to amend Code Section 31-10-9 of the Official Code
of Georgia Annotated, relating to registration of births, so as to provide for children born
from methods of assisted reproduction; to amend Code Section 43-34-37 of the Official Code
of Georgia Annotated, relating to persons authorized to perform artificial insemination and
civil liability of physician or surgeon, so as to provide for the authorization of performing
methods of assisted reproduction; to amend Title 44 of the Official Code of Georgia
Annotated, relating to property, so as to provide for petitions of trustees and trust directors
regarding nonvested property interests; to provide for certain institutional gifts and funds; to
amend Code Section 50-18-160 of the Official Code of Georgia Annotated, relating to
protection of personal information of individuals or nonprofit organizations, so as to provide
that certain provisions of such Code section shall not apply to the collection and use of
personal information by the Department of Early Care and Learning for purposes authorized
by Chapter 1A of Title 20; to amend Code Section 51-4-2 of the Official Code of Georgia
Annotated, relating to wrongful death of spouse or parent, so as to provide for recovery for
children born out of wedlock; to amend Title 53 of the Official Code of Georgia Annotated,
relating to wills, trusts, and administration of estates, so as to provide for the decree of
adoption; to provide for estate interests of children born out of wedlock or from methods of
assisted reproduction; to provide for procedures when heirship distribution is in question
regarding estate property interests; to provide for certain fiduciary powers for estate personal
representatives; to provide that creditors give personal representatives timely notice of claims
against the estate; to provide for the filing and service of estate annual return documentation;
to revise certain definitions relating to trusts; to provide for DNA testing with regard to
kinship; to provide for the survival of common law and equity regarding trusts; to provide
for interested parties in nonjudicial settlement agreements; to provide for conditions in
terrorem trust instruments; to provide for trustee duties to the settlor; to provide for certain
trustee powers regarding trust modifications; to provide for charitable trusts; to provide for
the capacity, appointment, and removal of trustees; to provide for trustee duties to the
beneficiary; to provide for trustee powers; to repeal a provision relating to granting powers
by qualified beneficiaries; to provide for limitations of actions against a trustee; to provide
for nonresidents acting as trustees; to revise provisions regarding trust instrument delegation
and unitrusts; to revise provisions relating to trust directors; to provide for electronic trust
administration records and electronic signatures with respect to trusts; to provide for
definitions; to provide for conformity to federal law; to provide for related matters; to repeal
conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
Chapter 1 of Title 7 of the Official Code of Georgia Annotated, relating to financial
institutions, is amended by revising subsection (b) of Code Section 7-1-223, relating to
substituted trustee or manager for trust and pooled assets, as follows:
"(b) Nothing in this Code section or Code Section 7-1-222 shall be construed to impair any
right of the grantor or beneficiaries of trust or pooled assets, <ins>a trust director acting as
authorized by and in compliance with Article 18 of Chapter 12 of Title 53 with respect to
trust or pooled assets, or any person acting as authorized by and in compliance with Code
Section 53-12-201 with respect to trust or pooled assets</ins> under applicable instruments or
otherwise to secure or provide for the appointment of a substituted trustee or manager."
SECTION 2.
Said chapter is further amended by revising subsection (b) of Code Section 7-1-242, relating
to restriction on corporate fiduciaries, as follows:
"(b) Acting as a fiduciary for purposes of this Code section includes, but is not limited to:
(1) Accepting or executing trusts or otherwise acting as a trustee;
(2) Administering real or tangible personal property located in Georgia or elsewhere.
<del>For the purposes of</del> <ins>As used in</ins> this paragraph, <ins>the term</ins> 'administer' means to possess,
purchase, sell, lease, insure, safekeep, manage, or otherwise oversee; and
(3) Acting pursuant to a court order as personal representative, <del>executor,</del> or <ins>temporary
</ins> administrator of the estate of a deceased person or as guardian or conservator for a minor
or incapacitated person."
SECTION 3.
Said chapter is further amended by revising subsection (d) of Code Section 7-1-322, relating
to effect of affiliate transfer on bank, abandonment of transfer, and substituted fiduciary, as
follows:
"(d) Nothing in this Code section shall be construed to impair any right of the grantor or
beneficiaries of any fiduciary relationship <ins>or a trust director acting as authorized by and in
compliance with Article 18 of Chapter 12 of Title 53 with respect to such fiduciary
relationship</ins> under applicable instruments or otherwise to secure or provide for the
appointment of a substituted fiduciary."
SECTION 4.
Said chapter is further amended by revising Code Section 7-1-324, relating to designation
of affiliate trust company as successor fiduciary, as follows:
"7-1-324.
Upon any affiliate transfer, the affiliate trust company may be designated in any deed, trust
<ins>instrument,</ins> agreement, filing, instrument, notice, certificate, pleading, or other document
as successor fiduciary pursuant to this part."
SECTION 5.
Said chapter is further amended by revising Code Section 7-1-333, relating to limitations on
investments, as follows:
"7-1-333.
Trust institutions and foreign trust institutions, as defined by this part, acting in a fiduciary
capacity and for fiduciary purposes, if exercising due care as a prudent investor, and with
the consent of any cofiduciary, may invest and reinvest funds held in such fiduciary
capacity in the shares of stock of one or more fiduciary investment companies, except
where the will, trust <ins>instrument or</ins> indenture, or other instrument under which such trust
institution or foreign trust institution acts prohibits such investment, provided that the
fiduciary investment company, by its articles of incorporation issued and granted in
conformity with Chapter 2 of Title 14, <ins>the 'Georgia Business Corporation Code,'</ins> shall have
and possess the corporate powers required by this part and be subject to the limitations set
forth by this part; provided, further, that no such trust institution or foreign trust institution
shall invest in the stock of a fiduciary investment company on behalf of any estate, trust,
or fund administered by such trust institution or foreign trust institution a sum or amount
<del>which</del> <ins>that</ins> would result in such estate, trust, or fund having a total investment in such stock
in excess of the maximum amount or percentage that might be invested by such estate,
trust, or fund, under the regulations of the department in effect at the time of such
investment, in any common trust fund having total assets equal to the total assets of the
fiduciary investment company as increased by the proposed investment; and no trust
institution or foreign trust institution shall invest in the stock of a fiduciary investment
company if, immediately after such investment and as a consequence thereof, it would own
more than 25 percent of the voting securities of such fiduciary investment company <del>which
</del> <ins>that</ins> would then be outstanding."
SECTION 6.
Said chapter is further amended by revising Code Section 7-1-334, relating to corporate
powers and limitations and restrictions, as follows:
"7-1-334.
Every fiduciary investment company in which a trust institution or foreign trust institution
is authorized by this part to own and hold corporate stock or shares, in order to qualify for
such investments, shall have such corporate powers as may be granted by Chapter 2 of
Title 14, <ins>the 'Georgia Business Corporation Code,'</ins> by virtue of its incorporation under
those chapters and shall, in addition, have the following corporate powers under its articles
of incorporation and, by its articles of incorporation or its bylaws, be subject to the
limitations and restrictions set forth in this Code section:
(1) The stock of any such fiduciary investment company shall be owned and held only
by trust institutions and foreign trust institutions acting as fiduciaries or cofiduciaries but
may be registered in the name of the nominee or nominees of any such trust institution
or foreign trust institution. Such stock shall not be subject to transfer or assignment
except to the trust institution or foreign trust institution on whose behalf the stock is held
by any such nominee or nominees or to a fiduciary or cofiduciary <del>which</del> <ins>that</ins> becomes
successor to the shareholder and <del>which</del> <ins>that</ins> is also a trust institution or foreign trust
institution qualified to hold such stock.;
(2) A fiduciary investment company shall have no <del>less</del> <ins>fewer</ins> than five directors, who
need not be shareholders but shall be officers or directors of trust institutions or foreign
trust institutions holding stock in such fiduciary investment company; provided, however,
that no more than two directors shall be officers or directors of any one trust institution
or foreign trust institution if the fiduciary investment company has been organized and
incorporated by three or more trust institutions.;
(3) In acquiring, investing, reinvesting, exchanging, selling, and managing its assets,
every fiduciary investment company shall exercise the judgment and care under the
circumstances then <del>existing which men</del> <ins>prevailing that persons</ins> of prudence, discretion,
and intelligence exercise in the management of their own affairs, not in regard to
speculation but in regard to the permanent disposition of their funds, considering the
probable income as well as the safety of their capital. Within the foregoing limitations,
a fiduciary investment company may acquire and retain every kind of investment,
specifically including, <ins>but not limited to,</ins> <del>(but not by way of limitation)</del> bonds,
debentures, and other corporate obligations and corporate stocks, preferred or common,
<del>which men</del> <ins>that persons</ins> of prudence, discretion, and intelligence acquire or retain for
their own account, provided that a fiduciary investment company shall not at any time:
(A) Invest in real estate, commodities, or commodity contracts;
(B) Participate on a joint or joint and several basis in any securities trading account;
(C) Invest in companies for the purpose of exercising control or management;
(D) Make loans to any person or persons, except that the purchase of a portion of an
issue of debt securities, convertible debt securities, debt securities with warrants, rights,
or options attached, or other similar securities when originally issued or thereafter, of
a character commonly distributed publicly, shall not be considered the making of a
loan;
(E) Purchase or retain the securities of any issuer if immediately after such acquisition
and as a result thereof the following requirements would not be met: at least 75 percent
of the total assets in the fiduciary investment company taken at market value are
represented by cash and cash items, securities issued or guaranteed by the United States
or an instrumentality thereof, and other securities <del>which</del> <ins>that,</ins> as to any one issuer, do
not represent more than 10 percent of the value of the total assets of the fiduciary
investment company;
(F) Purchase or otherwise acquire the securities of any other investment company as
<del>that</del> <ins>such</ins> term is defined in <del>the act of Congress entitled 'Investment</del> <ins>the federal
Investment</ins> Company Act of <del>1940'</del> <ins>1940;
</ins> (G) Act as underwriter of the securities of other issuers;
(H) Borrow money; or
(I) Engage in margin transactions or short sales or write put or call options for the
purchase or sale of securities.;
(4) A fiduciary investment company may acquire, purchase, or redeem its own stock and
may, by means of contract or by its bylaws, bind itself to acquire, purchase, or redeem
its own stock; but it shall not vote shares of its own stock theretofore redeemed.;
(5) A fiduciary investment company shall not be responsible for ascertaining the
investment powers of any fiduciary who may purchase its stock, shall not be liable for
accepting funds from a fiduciary in violation of restrictions of the will, trust <ins>instrument
or</ins> indenture, or other instrument under which such fiduciary is acting in absence of actual
knowledge of such violation, and shall be accountable only to the department and the
fiduciaries who are the owners of its stock.; <ins>and
</ins> (6) Every fiduciary investment company subject to the supervision and regulation of the
comptroller of the currency of the United States shall comply with all applicable rules and
regulations of that agency to the extent that such rules and regulations are in addition to
or in conflict with rules and regulations promulgated by the department."
SECTION 7.
Chapter 6B of Title 10 of the Official Code of Georgia Annotated, relating to Georgia power
of attorney, is amended in Code Section 10-6B-3, relating to applicability of chapter, by
revising paragraphs (9) and (10) and by adding a new paragraph to read as follows:
"(9) <ins>Any delegation of authority by a personal representative, trustee, or trust director
that is expressly provided for under a will or trust instrument or under Title 53, including,
but not limited to, paragraph (2) of subsection (a) of Code Section 53-7-5, paragraph (1)
of Code Section 53-12-204, Code Section 53-12-345, and subsection (f) of Code Section
53-12-503;
(10)</ins> Powers of attorney provided for under Titles 19 and 33; and
<del>(10)(11)</del> As set forth in Code Section 10-6B-81."
SECTION 8.
Said chapter is further amended by revising Code Section 10-6B-81, relating to application
of Chapter 6B, as follows:
"10-6B-81.
(a) <ins>This Code section and</ins> Code Section 10-6B-19 shall apply retroactively to powers of
attorney created before July 1, 2018. The remainder of this chapter shall not apply to a
power of attorney executed before July 1, 2017.
(b) When <del>Code Section 10-6B-3</del> <ins>this chapter</ins> applies to a power of attorney <ins>pursuant to
Code Section 10-6B-3,</ins> Chapter 6 of this title shall not apply to such power of attorney.
(c) When, other than <ins>this Code section and</ins> Code Section 10-6B-19, this chapter does not
apply to a power of attorney:
(1) It shall not affect the application of Chapter 6 of this title; and
(2) The former provisions of Article 7 of Chapter 6 of this title, as such existed on June
30, 2017, shall remain applicable."
SECTION 9.
Code Section 15-9-127 of the Official Code of Georgia Annotated, relating to concurrent
jurisdiction with superior courts and probate court jurisdiction, is amended by adding a new
subsection to read as follows:
<ins>"(d) In a proceeding in the probate court under subsection (a) of this Code section, service
of summons, notice, or process may be made pursuant to Chapter 11 of Title 53."
</ins> SECTION 10.
Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is
amended by revising paragraph (9) of subsection (b) of Code Section 19-7-1, relating to in
whom parental power lies, how such power lost, and recovery for homicide of child or
unborn child, as follows:
"(9) A superior court order terminating parental rights of the legal father or the biological
father who is not the legal father of the child in a petition for legitimation, a petition to
establish paternity, a divorce proceeding, or a custody proceeding pursuant to this chapter
or Chapter 5, 8, or 9 of this title, provided that such termination is in the best interest of
such child; and provided, further, that this paragraph shall not apply to such termination
when a child has been adopted or is conceived by artificial insemination, <ins>in vitro
fertilization, or other similar method of assisted reproduction</ins> as set forth in <ins>subsection
(a) of</ins> Code Section 19-7-21 or when an embryo is adopted as set forth in Article 2 of
Chapter 8 of this title."
SECTION 11.
Said title is further amended by revising Code Section 19-7-21, relating to when children
conceived by artificial insemination legitimate, as follows:
"19-7-21.
<ins>(a)</ins> All children born within wedlock or within the usual period of gestation thereafter who
have been conceived by means of artificial insemination, <ins>in vitro fertilization, or other
similar method of assisted reproduction</ins> are irrebuttably presumed legitimate if both
spouses have consented in writing to the use and administration of artificial insemination,
<ins>in vitro fertilization, or other similar method of assisted reproduction.
(b) Subsection (a) of this Code section shall be subject to Article 2 of Chapter 8 of this
title, and, in the event of a conflict, the provisions of such article shall prevail."
</ins> SECTION 12.
Said title is further amended by revising subsection (d) of Code Section 19-7-22, relating to
petition for legitimation of child, requirement that mother be named as a party, court order,
effect, claims for custody or visitation, and third-party action for legitimation in response to
petition to establish paternity, as follows:
"(d)(1) Upon the presentation and filing of a legitimation petition, and after a hearing for
which notice was provided to all interested parties, the court may issue an order declaring
the biological father's relationship with the child to be legitimate, provided that such order
is in the best interests of the child. If such order is issued, the biological father and child
shall be capable of inheriting from each other in the same manner as if <ins>the child was</ins> born
in lawful wedlock, <ins>pursuant to division (2)(A)(i) of Code Section 53-2-3 and
paragraph (1) of subsection (b) of Code Section 53-2-4.</ins> Such order shall specify the
name by which the child shall be known.
(2)(A) If the court determines by clear and convincing evidence that the father caused
his child to be conceived as a result of having nonconsensual sexual intercourse with
the mother of his child or <ins>an offense that consists of the same or similar elements under
federal law or the laws of another state or territory of the United States, or</ins> when the
mother is less than ten years of age, <del>or an offense which consists of the same or similar
elements under federal law or the laws of another state or territory of the United States,
</del> it shall create a presumption against legitimation.
(B)(i) Notwithstanding <ins>division (2)(A)(i) of</ins> Code Section 53-2-3, if the court denies
a legitimation petition under this paragraph, the child shall be capable of inheriting
from or through his or her father <ins>under divisions (2)(A)(ii) through (vi) of Code
Section 53-2-3 or subparagraph (B) of paragraph (2) of Code Section 53-2-3.
(ii)</ins> Notwithstanding Code Section 53-2-4, if the court denies a legitimation petition
under this paragraph, the father shall not be capable of inheriting from or through his
child.
(C) If there is a pending criminal proceeding in connection with an allegation made
pursuant to subparagraph (A) of this paragraph, the court shall stay discovery in the
legitimation action until the completion of such criminal proceeding.
<ins>(D) Except as provided in this paragraph, nothing in this article shall be applied or
construed to abrogate or limit:
</ins>
<ins>(i) The jurisdiction of a probate court or a superior court under Code Section 53-2-20
to resolve judicially the identity or interest of any heir in accordance with Article 2
of Chapter 2 of Title 53; or
(ii) The effect of the findings of such a court in such a proceeding pursuant to Code
Section 53-2-26."
</ins> SECTION 13.
Said title is further amended by adding a new subsection to Code Section 19-7-40, relating
to jurisdiction and administrative determination of paternity, to read as follows:
<ins>"(c) Nothing in this article shall be applied or construed to abrogate or limit:
(1) The jurisdiction of a probate court or a superior court under Code Section 53-2-20
to resolve judicially the identity or interest of any heir in accordance with Article 2 of
Chapter 2 of Title 53; or
(2) The effect of the findings of such a court in such a proceeding pursuant to Code
Section 53-2-26."
</ins> SECTION 14.
Said title is further amended by revising subsection (e) of Code Section 19-7-43, relating to
petition, by whom brought, effect of agreement on right to bring petition, stay pending birth
of child, court order for blood tests, and genetic tests, as follows:
"(e) In any case for the collection of child support involving the Department of Human
Services in which the paternity of a child or children has not been established or in which
the individual receiving services alleges that paternity rests in a person other than the
previously established father, the Department of Human Services shall order genetic testing
of the mother, the alleged father, and the child or children as specified in Code Section
19-7-45. No genetic testing shall be undertaken by the Department of Human Services if
the child was adopted either by the applicant for services or other alleged parent or if the
child was conceived by means of artificial insemination, <ins>in vitro fertilization, or other
similar method of assisted reproduction.</ins> The need for genetic testing shall be supported
by a sworn statement alleging paternity and setting forth facts establishing a reasonable
possibility of the requisite sexual contact between the parties. The parties shall be given
notice and an opportunity to contest the order before the Department of Human Services
prior to the testing or the imposition of any noncooperation sanction."
SECTION 15.
Said title is further amended by revising paragraph (3) of subsection (b) and subparagraph
(d)(1)(C) of Code Section 19-7-54, relating to motion to set aside determination of paternity,
as follows:
"(3) The child was not conceived by artificial insemination, <ins>in vitro fertilization, or other
similar method of assisted reproduction</ins> while the male ordered to pay child support and
the child's mother were in wedlock;"
"(C) The child was conceived by means of artificial insemination, <ins>in vitro fertilization,
or other similar method of assisted reproduction;</ins> or"
SECTION 16.
Said title is further amended by adding a new Code section to Article 2 of Chapter 11, the
"Uniform Reciprocal Enforcement of Support Act," to read as follows:
<ins>"19-11-82.
Nothing in this article shall be applied or construed to abrogate or limit:
(1) The jurisdiction of a probate court or a superior court under Code Section 53-2-20
to resolve judicially the identity or interest of any heir in accordance with Article 2 of
Chapter 2 of Title 53; or
(2) The effect of the findings of such a court in such a proceeding pursuant to Code
Section 53-2-26."
</ins>
SECTION 17.
Said title is further amended by adding a new Code section to Article 3 of Chapter 11, the
"Uniform Interstate Family Support Act," to read as follows:
<ins>"19-11-192.
Nothing in this article shall be applied or construed to abrogate or limit:
(1) The jurisdiction of a probate court or a superior court under Code Section 53-2-20
to resolve judicially the identity or interest of any heir in accordance with Article 2 of
Chapter 2 of Title 53; or
(2) The effect of the findings of such a court in such a proceeding pursuant to Code
Section 53-2-26."
</ins> SECTION 18.
Code Section 24-12-21 of the Official Code of Georgia Annotated, relating to disclosure of
AIDS confidential information, is amended by revising subsections (y) and (bb) as follows:
"(y) The protection against disclosure provided by Code Section 24-12-20 shall be waived,
and AIDS confidential information may be disclosed, to the extent that the person
identified by such information, <del>his or her;</del> <ins>such person's</ins> heirs, successors, <ins>or</ins> assigns, <del>or;
</del> a beneficiary of such <del>person, including, but not limited to, an executor, administrator,
</del> <ins>person's estate;</ins> or <ins>the</ins> personal representative of such person's estate:
(1) Files a claim or claims other entitlements under any insurance policy or benefit plan
or is involved in any civil proceeding regarding such claim;
(2) Places such person's care and treatment, the nature and extent of his or her injuries,
the extent of his or her damages, his or her medical condition, or the reasons for his or her
death at issue in any judicial proceeding; or
(3) Is involved in a dispute regarding coverage under any insurance policy or benefit
plan."
"(bb) AIDS confidential information may be disclosed as a part of any proceeding or
procedure authorized or required pursuant to Chapter 3, 4, or 7 of Title 37, regarding a
person who is alleged to be or who is mentally ill, developmentally disabled, or alcoholic
or drug dependent;, <del>or</del> as a part of any proceeding or procedure authorized or required
pursuant to Title 29, regarding the guardianship of a person or <del>that</del> the conservatorship of
<ins>a</ins> person's estate; <ins>or as a part of any proceeding or procedure authorized or required
pursuant to Title 53 regarding the estate of a deceased person,</ins> as follows:
(1) Any person who files or transmits a petition or other document <del>which</del> <ins>that</ins> discloses
AIDS confidential information in connection with any such proceeding or procedure shall
provide a cover page <del>which</del> <ins>that</ins> contains only the type of proceeding or procedure, the
court in which the proceeding or procedure is or will be pending, and the words
'CONFIDENTIAL INFORMATION' without in any way otherwise disclosing thereon
the name of any individual or that such petition or other document specifically contains
AIDS confidential information;
(2) AIDS confidential information shall only be disclosed pursuant to this subsection
after disclosure to and with the written consent of the person identified by that
information;, <del>or</del> that person's parent or guardian if that person is a minor; <del>or has</del> <ins>that
person's guardian, if that person</ins> previously <ins>has</ins> been adjudicated as being <del>incompetent,
</del> <ins>in need of a guardian; the personal representative of that person's estate, if that person is
deceased;</ins> or by order of court obtained in accordance with subparagraph (C) of paragraph
(3) of this subsection;
(3) If any person files or transmits a petition or other document in connection with any
such proceeding or procedure <del>which</del> <ins>that</ins> discloses AIDS confidential information without
obtaining consent as provided in paragraph (2) of this subsection, the court receiving such
information shall either obtain written consent as set forth in that paragraph (2) for any
further use or disclosure of such information or:
(A) Return such petition or other document to the person who filed or transmitted
same, with directions against further filing or <del>transmittal</del> <ins>transmitting</ins> of such
information in connection with such proceeding or procedure except in compliance with
this subsection;
(B) Delete or expunge all references to such AIDS confidential information from the
particular petition or other document; or
(C)(i) If the court determines there is a compelling need for such information in
connection with the particular proceeding or procedure, petition a superior court of
competent jurisdiction for permission to obtain or disclose that information. If the
person identified by the information is not yet represented by an attorney in the
proceeding or procedure in connection with which the information is sought, the
petitioning court shall appoint an attorney for such person. The petitioning court shall
have both that person and that person's attorney personally served with notice of the
petition and <ins>of the date,</ins> time, and place of the superior court hearing thereon. Such
hearing shall not be held sooner than 72 hours after service, unless the information is
to be used in connection with an emergency guardianship proceeding under Code
Section 29-4-14, in which event the hearing shall not be held sooner than 48 hours
after service.
(ii) The superior court in which a petition is filed pursuant to division (i) of this
subparagraph shall hold an in camera hearing on such petition. The purpose of the
hearing shall be to determine whether there is clear and convincing evidence of a
compelling need for the AIDS confidential information sought in connection with the
particular proceeding or procedure <del>which</del> <ins>that</ins> cannot be accommodated by other
means. In assessing compelling need, the superior court shall weigh the public health,
safety, or welfare needs or any other public or private need for the disclosure against
the privacy interest of the person identified by the information and the public interest
<del>which</del> <ins>that</ins> may be disserved by disclosures <del>which</del> <ins>that</ins> may deter voluntary HIV tests.
If the court determines that disclosure of <del>that</del> <ins>such</ins> information is authorized under
this subparagraph, the court shall order <del>that</del> <ins>such</ins> disclosure and <ins>shall</ins> impose
appropriate safeguards against any unauthorized disclosure. The records of that
hearing otherwise shall be under seal; and
(4) The court having jurisdiction over such proceeding or procedure, when it becomes
apparent that AIDS confidential information will likely be or has been disclosed in
connection with such proceeding or procedure, shall take such measures as the court
determines appropriate to preserve the confidentiality of the disclosed information to the
maximum extent possible. Such measures shall include, without being <ins>but shall not be
</ins> limited to, closing the proceeding or procedure to the public and sealing all or any part
of the records of the proceeding or procedure containing AIDS confidential information.
The records of any appeals taken from any such proceeding or procedure shall also be
sealed. Furthermore, the court may consult with and obtain the advice of medical experts
or other counsel or advisers as to the relevance and materiality of such information in
such proceedings or procedures, provided that the identity of the person identified by
such information is not thereby revealed."
SECTION 19.
Title 29 of the Official Code of Georgia Annotated, relating to guardian and ward, is
amended by revising Code Section 29-6-1, relating to judges of probate courts as custodians
of certain funds and authority to collect debts, as follows:
"29-6-1.
The judges of the probate courts are, in their discretion, made the legal custodians and
distributors of all moneys up to <del>$15,000.00</del> <ins>$25,000.00</ins> due and owing to any minor or
<del>incapacitated</del> adult who is in need of a conservator but who has no legal and qualified
conservator; and the judges are authorized to receive and collect all such moneys arising
from insurance policies, benefit societies, legacies, inheritances, or any other source.
Without any appointment or qualifying order, the judge is authorized to take charge of the
moneys or funds of the minor or adult by virtue of the judge's office as judge of the probate
court in the county of residence of the minor or adult; provided, however, that notice shall
be given to the living parents of a minor, if any, or the guardian of an adult, if any. The
certificate of the judge that no legally qualified conservator has been appointed shall be
conclusive and shall be sufficient authority to justify any debtor in making payment on
claims made by the judge."
SECTION 20.
Said title is further amended by revising subsection (b) of Code Section 29-9-15, relating to
compensation for legal counsel or guardian ad litem, as follows:
"(b) In connection with any proceeding brought pursuant to the provisions of Chapter 2,
3, 4, 5, 7, or 11 of this title, unless voluntarily waived, the court may award reasonable fees
and expenses, commensurate with the tasks performed and time devoted to the proceeding,
including any appeals, to any legal counsel who is retained by or on behalf of a minor, a
proposed ward, a ward, the petitioner or petitioners, or any other party to any proceeding
brought pursuant to the provisions of said chapters. <del>As</del> <ins>as</ins> directed by the court in the
exercise of its sound discretion and as the court may deem to be in the best interest of the
minor, proposed ward, or ward who is the subject of the particular proceeding."
SECTION 21.
Code Section 31-10-9 of the Official Code of Georgia Annotated, relating to registration of
births, is amended by revising subsections (d) and (f) as follows:
"(d) When a birth occurs on a moving conveyance within the United States and the child
is first removed from the conveyance in this state, the birth shall be registered in this state
and the place where <del>it</del> <ins>the child</ins> is first removed shall be considered the place of birth.
When a birth occurs on a moving conveyance while in international waters or airspace or
in a foreign country or its airspace and the child is first removed from the conveyance in
this state, the birth shall be registered in this state but the certificate shall show the actual
place of birth insofar as <ins>such place</ins> can be determined."
"(f) The birth certificate of a child born to a married woman as a result of artificial
insemination, <ins>in vitro fertilization, or other similar method of assisted reproduction,</ins> with
consent of her husband, shall be completed in accordance with the provisions of subsection
(e) of this Code section."
SECTION 22.
Code Section 43-34-37 of the Official Code of Georgia Annotated, relating to persons
authorized to perform artificial insemination and civil liability of physician or surgeon, is
amended by revising said Code section as follows:
"43-34-37.
(a) Physicians and surgeons licensed to practice medicine in accordance with and under
this article shall be the only persons authorized to administer or perform artificial
insemination, <ins>in vitro fertilization, or other similar method of assisted reproduction</ins> upon
any female human being. Any other person or persons who shall attempt to administer or
perform or who shall actually administer or perform artificial insemination, <ins>in vitro
fertilization, or other similar method of assisted reproduction</ins> upon any female human being
shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment
in the penitentiary for not less than one year nor more than five years.
(b) Any physician or surgeon who obtains written authorization signed by both the
husband and the wife authorizing him or her to perform or administer artificial
insemination, <ins>in vitro fertilization, or other similar method of assisted reproduction</ins> shall
be relieved of civil liability to the husband and wife or to any child conceived by artificial
insemination, <ins>in vitro fertilization, or other similar method of assisted reproduction</ins> for the
result or results of said artificial insemination, <ins>in vitro fertilization, or other similar method
</ins>
<ins>of assisted reproduction,</ins> provided that the written authorization <del>provided for in this Code
section</del> <ins>obtained</ins> shall not relieve any physician or surgeon from any civil liability arising
from his or her own negligent administration or performance of artificial insemination, <ins>in
vitro fertilization, or other similar method of assisted reproduction."
</ins> SECTION 23.
Title 44 of the Official Code of Georgia Annotated, relating to property, is amended by
revising Code Section 44-5-37, relating to applicability of Code Sections 53-2-112 through
53-2-114 to elections under or against deed, as follows:
"44-5-37.
The principles of Code Sections <del>53-2-112 through 53-2-114</del> 53-4-70 and 53-4-71 relating
to elections shall also apply to deeds."
SECTION 24.
Said title is further amended by revising Code Section 44-6-203, relating to reform of
disposition by court to approximate transferor's plan of distribution, as follows:
"44-6-203.
Upon the petition of <del>an interested person</del> <ins>a trustee, trust director, or other person whose
interests would be affected,</ins> a court shall reform a disposition in the manner that most
closely approximates the transferor's manifested plan of distribution and is within the
number of years allowed by paragraph (2) of subsection (a), (b), or (c) of Code Section
44-6-201 if:
(1) A nonvested property interest or a power of appointment becomes invalid under Code
Section 44-6-201;
(2) A class gift is not but might still become invalid under Code Section 44-6-201 and
the time has arrived when the share of any class member is to take effect in possession
or enjoyment; or
(3) A nonvested property interest that is not validated by paragraph (1) of subsection (a)
of Code Section 44-6-201 can vest, but not within 360 years after its creation."
SECTION 25.
Said title is further amended by revising paragraphs (1), (2), and (4) of Code Section
44-6-204, relating to exceptions to applicability of article, as follows:
"(1) A nonvested property interest or a power of appointment arising out of a
nondonative transfer, except a nonvested property interest or a power of appointment
arising out of:
(A) A premarital or postmarital agreement;
(B) A separation or divorce settlement;
(C) A spouse's election;
(D) A similar arrangement arising out of a prospective, existing, or previous marital
relationship between the parties;
(E) A contract to make or not to revoke a will or trust, <ins>including, but not necessarily
limited to, a contract made pursuant to Code Section 53-4-30;
</ins> (F) A contract to exercise or not to exercise a power of appointment;
(G) A transfer in satisfaction of a duty of support; or
(H) A reciprocal transfer;
(2) A fiduciary's power relating to the administration or management of assets, including:
<ins>(A) The</ins> <del>the</del> power of a fiduciary to sell, lease, or mortgage property,;
<ins>(B) The</ins> <del>and the</del> power of a fiduciary to determine principal and income; <ins>and
(C) A power of direction, as such term is defined in Code Section 53-12-500;"
</ins> "(4) A discretionary power of a trustee to distribute <ins>or of a trust director to direct the
distribution of</ins> principal before termination of a trust to a beneficiary having an
indefeasibly vested interest in the income and principal. <del>Nothing;</del> <ins>provided, however,
that nothing</ins> contained in paragraphs (2) and (3) of this Code section and this paragraph
shall be construed to permit the fiduciary to continue the administration or management
of assets once the nonvested property interest becomes invalid as described in subsection
(a) of Code Section 44-6-201;"
SECTION 26.
Said title is further amended by revising subsection (b) of Code Section 44-6-205, relating
to applicability of article and court reform of nonvested dispositions created before article
became effective, as follows:
"(b) With respect to a nonvested property interest or a power of appointment that was
created before July 1, 2018, and that violates this state's rule against perpetuities as that rule
existed before July 1, 2018, a court, upon the petition of an interested party <ins>a trustee, trust
director, or other person whose interests would be affected,</ins> may:
<ins>(1) Subject to Code Section 23-1-4,</ins> exercise its equitable power;
<ins>(2) Approve a nonjudicial settlement agreement or make any related determination under
subsection (c) of Code Section 53-12-9;
(3) Approve a petition to modify or terminate an irrevocable trust under Code Section
53-12-61; or
(4) Declare that the exercise of the power to invade the principal of the original trust
under subsection (b) of Code Section 53-12-62 is appropriate and effective
so that the nonvested property interest is within the limits of the rule against perpetuities
applicable when the nonvested property interest or power of appointment was created</ins> to
reform the disposition in the manner that most closely approximates the transferor's
manifested plan of distribution and is within the limits of the rule against perpetuities
applicable when the nonvested property interest or power of appointment was created."
SECTION 27.
Said title is further amended by adding a new Code section to Article 9 of Chapter 6, the
"Uniform Statutory Rule Against Perpetuities," to read as follows:
<ins>"44-6-207.
As used in this article, the term:
(1) 'Court' means a court of competent jurisdiction as determined in accordance with
Code Section 53-12-6.
(2) 'Power of appointment' shall have the same meaning as set forth in Code Section
53-12-500.
(3) 'Power of direction' shall have the same meaning as set forth in Code Section
53-12-500.
(4) 'Trust' means an express trust, as such term is defined in Code Section 53-12-2."
</ins> SECTION 28.
Said title is further amended by revising subsections (b) and (e) of Code Section 44-15-3,
relating to considerations and standard of conduct for institutions receiving gifts, as follows:
"(b) In addition to complying with the duty of loyalty imposed by law other than this
chapter, each person responsible for managing and investing an institutional fund shall
manage and invest such fund in good faith and with the care, <ins>skill, and caution</ins> an
ordinarily prudent person in a like position would exercise under similar circumstances,
considering the purposes, terms, distribution requirements, and other circumstances of the
institutional fund."
"(e) Except as otherwise provided by a gift instrument, the following rules <ins>shall</ins> apply:
(1) In managing and investing an institutional fund, the following factors, if relevant,
shall be considered:
(A) General economic conditions;
(B) The possible effect of inflation or deflation;
(C) The expected tax consequences, if any, of investment decisions or strategies;
(D) The role that each investment or course of action plays within the overall
investment portfolio of such fund;
(E) The expected total return from income and the appreciation of investments;
(F) Other resources of the institution;
(G) The needs of the institution and such fund to make distributions and to preserve
capital; <del>and
</del> (H) An asset's special relationship or special value, if any, to the charitable purposes
of the institution or to the donor; <ins>and
(I) Any special circumstances;
</ins> (2) Management and investment decisions about an individual asset shall not be made
in isolation but rather in the context of the institutional fund's portfolio of investments as
a whole and as a part of an overall investment strategy having risk and return objectives
reasonably suited to the institutional fund and to the institution;
(3) An institution may invest in any kind of property or type of investment consistent
with <ins>the provisions of</ins> this Code section;
(4) An institution shall reasonably manage the risk of concentrated holdings of assets by
diversifying the investments of the institutional fund or by using some other appropriate
mechanism, except as provided in this paragraph, as follows:
(A) The duty imposed by this paragraph shall not apply if the institution reasonably
determines that, because of special circumstances, or because of the specific purposes,
terms, distribution requirements, and other circumstances of the institutional fund, the
purposes of such fund are better served without complying with the duty. For purposes
of this paragraph, special circumstances shall include an asset's special relationship or
special value, if any, to the charitable purposes of the institution or to the donor;
(B) No person responsible for managing and investing an institutional fund shall be
liable for failing to comply with the duty imposed by this paragraph to the extent that
the terms of the gift instrument or express written agreement between the donor and the
institution limits or waives the duty; and
(C) The governing board of an institution may retain property contributed by a donor
to an institutional fund for as long as the governing board deems advisable;
(5) Within a reasonable time after receiving property, an institution shall make and carry
out decisions concerning the retention or disposition of the property or to the rebalancing
of a portfolio, in order to bring the institutional fund into compliance with the purposes,
terms, and distribution requirements of the institution or the institutional fund as
necessary to meet other circumstances of the institution or the institutional fund and the
requirements of this chapter; <del>and
</del> (6) A person that has special skills or expertise, or is selected in reliance upon the
person's representation that such person has special skills or expertise, has a duty to use
those skills or expertise in managing and investing institutional funds; <ins>and
(7) In investing and managing institutional funds, an institution may consider the
personal values of the donor, including, but not limited to, a desire to engage in investing
strategies that align with social, political, religious, philosophical, environmental,
governance, or other values or beliefs of the donor; provided, however, that nothing in
this paragraph shall allow an institutional fund to be used for a purpose other than a
charitable purpose of the institution."
</ins> SECTION 29.
Said title is further amended by revising subsection (a) of Code Section 44-15-4, relating to
management of institutional funds for endowment, as follows:
"(a) Subject to the intent of a donor expressed in the gift instrument or to any express
written agreement between a donor and an institution, an institution may appropriate for
expenditure or accumulate assets of an endowment fund as the institution determines shall
be prudent for the uses, benefits, purposes, and duration for which the endowment fund is
established. Unless stated otherwise in the gift instrument, the assets in an endowment
fund shall be donor restricted assets until appropriated for expenditure by the institution.
In making a determination to appropriate or accumulate assets, the institution shall act in
good faith, with the care that an ordinarily prudent person in a like position would exercise
under similar circumstances,; <ins>shall exercise reasonable care, skill, and caution;</ins> and shall
consider, if relevant, the following factors:
(1) The duration and preservation of the endowment fund;
(2) The purposes of the institution and the endowment fund;
(3) General economic conditions;
(4) The possible effect of inflation or deflation;
(5) The expected total return from income and the appreciation of investments;
(6) Other resources of the institution; <del>and
</del> (7) The investment policy of the institution; <ins>and
(8) Any special circumstances."
</ins> SECTION 30.
Said title is further amended by adding new subsections to Code Section 44-15-6, relating
to modification of restrictions, to read as follows:
<ins>"(e) For purposes of subsection (a) of this Code section, a donor's designee includes, but
is not limited to, an agent under a power of attorney to the extent authorized by the power
of attorney and the duly constituted conservator of a donor who is a protected person, as
such term is defined in Code Section 29-11-2, to the extent such conservator is so
empowered pursuant to Code Section 29-5-23 or other applicable law.
(f) For purposes of subsection (b) of this Code section, if the gift instrument establishes
an express trust, as such term is defined in Code Section 53-12-2, a court shall include a
probate court or superior court as provided in Code Section 15-9-127 or 53-12-6."
</ins>
SECTION 31.
Code Section 50-18-160 of the Official Code of Georgia Annotated, relating to protection
of personal information of individuals or nonprofit organizations, is amended in
paragraph (12) of subsection (d) by striking "and" at the end of subparagraph (C), replacing
the period at the end of subparagraph (D) with "; and", and adding a new subparagraph to
read as follows:
<ins>"(E) By the Department of Early Care and Learning for purposes authorized in
Chapter 1A of Title 20."
</ins> SECTION 32.
Code Section 51-4-2 of the Official Code of Georgia Annotated, relating to wrongful death
of spouse or parent, is amended by revising subsection (f) as follows:
"(f) In actions for recovery under this Code section, the fact that a child has been born out
of wedlock shall be no bar to recovery, <ins>provided that such child born out of wedlock had
rights of inheritance from or through the child's deceased parent under Code Section
53-2-3."
</ins> SECTION 33.
Title 53 of the Official Code of Georgia Annotated, relating to wills, trusts, and
administration of estates, is amended by revising Code Section 53-1-9, relating to survival
of common law and equity, as follows:
"53-1-9.
Except to the extent that the principles of common law and equity governing wills, trusts,
and the administration of estates are modified by this title or another provision of law,
those principles remain the law of this state. <ins>Without limitation:
(1) No provision of this title shall be construed to imply that any other Code section or
the common law did not, prior to the enactment of such provision, impose, permit, or
</ins>
<ins>otherwise address a duty, power, relationship, or any other matter governed by such
provision; and
(2) The failure of the General Assembly to codify an established principle of common
law or equity governing wills, trusts, and the administration of estates shall not be
construed as evidence that the General Assembly intended to reject that principle unless
this title or another provision of law is inconsistent with that principle or there is other
evidence the General Assembly intended that such principle should no longer apply."
</ins> SECTION 34.
Said title is further amended by revising Code Section 53-2-2, which is reserved, as follows:
"53-2-2.
<ins>(a) Code Sections 53-2-3 and 53-2-4 shall be subject to the provisions of subparagraph
(d)(2)(B) of Code Section 19-7-22.
(b) Nothing in this chapter shall be applied or construed to expand or extend the
jurisdiction of the probate courts for purposes of Article 2 of Chapter 11 of Title 19, the
'Uniform Reciprocal Enforcement of Support Act,' or Article 3 of Chapter 11 of Title 19,
the 'Uniform Interstate Family Support Act.'</ins> <del>Reserved."
</del> SECTION 35.
Said title is further amended by revising Code Section 53-2-3, relating to inheritance by
children born out of wedlock, as follows:
"53-2-3.
The rights of inheritance of a child born out of wedlock shall be as follows:
(1) A child born out of wedlock may inherit in the same manner as though legitimate
from or through the child's mother, the other children of the mother, and any other
maternal kin;
(2)(A) A child born out of wedlock may not inherit from or through the child's father,
the other children of the father, or any paternal kin by reason of the paternal kinship,
unless:
(i) A court of competent jurisdiction has entered an order declaring the child to be
legitimate, under the authority of Code Section 19-7-22 or such other authority as may
be provided by law;
(ii) A court of competent jurisdiction has otherwise entered a court order establishing
paternity; <ins>that has not been set aside as provided in Code Section 19-7-54; provided,
however, that:
(I) A temporary order of support entered under subsection (a) of Code Section
19-7-46.2 or an order of support entered under subsection (a) of Code Section
19-7-49 shall not be conclusive under this division unless such order also satisfies
division (i) of this subparagraph or unless the court before which proceedings on the
estate are pending determines, in its discretion, that such order also satisfies division
(vi) of this subparagraph;
(II) A support order, as such term is defined in Code Section 19-11-42, shall not be
conclusive under this division unless such order also satisfies division (i) of this
subparagraph or unless the court before which proceedings on the estate are pending
determines, in its discretion, that such order also satisfies division (vi) of this
subparagraph;
(III) A temporary order of support entered under subsection (e) of Code Section
19-11-48 or a temporary order under Code Section 19-11-74 shall not be conclusive
under this division unless such order also satisfies division (i) of this subparagraph
or unless the court before which proceedings on the estate are pending determines,
in its discretion, that such order also satisfies division (vi) of this subparagraph;
(IV) A support order, as such term is defined in Code Section 19-11-101, shall not
be conclusive under this division unless such order also satisfies division (i) of this
</ins>
<ins>subparagraph or unless the court before which proceedings on the estate are pending
determines, in its discretion, that such order also satisfies division (vi) of this
subparagraph;
(V) A temporary child support order entered under paragraph (3) of subsection (b)
of Code Section 19-11-140 shall be conclusive under this division. A temporary
child support order entered under paragraph (5) of subsection (b) of Code Section
19-11-140 shall satisfy division (vi) of this subparagraph. Any other temporary
child support order entered under subsection (b) of Code Section 19-11-140 shall
not be conclusive under this division unless such order also satisfies division (i) of
this subparagraph or unless the court before which proceedings on the estate are
pending determines, in its discretion, that such order also satisfies division (vi) of
this subparagraph;
(VI) For purposes of this division, an administrative determination of paternity
made pursuant to subsection (b) of Code Section 19-7-40 shall have the same force
and effect as a judicial decree;
(VII) For purposes of this division, a court order for child support, as such term is
defined in Code Section 19-11-3, issued by an administrative or quasi-judicial entity
of this state or another state shall have the same force and effect as a judicial decree;
(VIII) For purposes of this division, a judgment determining parentage of a child
issued by a tribunal or a foreign tribunal, as such terms are defined in Code Section
19-11-101, shall be given the same force and effect by the court before which
proceedings on the estate are pending as such judgment would be given in the
tribunals of Georgia, as designated by subsection (a) of Code Section 19-11-102;
and
(IX) Nothing in this division shall be applied or construed to make available to the
probate courts the information contained in the state case registry pursuant to
subsection (e) of Code Section 19-11-39;
</ins>
(iii) The father has executed a sworn statement signed by him attesting to the
parent-child relationship, <ins>including, but not limited to:
(I) A voluntary acknowledgment of legitimation that was valid under the former
provisions of Code Section 19-7-21.1 and was executed on or before June 30, 2016;
(II) A voluntary acknowledgment of paternity that satisfies the requirements of
subsection (b) of Code Section 19-7-46.1 and is neither timely rescinded nor
successfully challenged as provided by subsection (b) or (c) of Code
Section 19-7-46.1;
(III) An acknowledgment of paternity made under oath pursuant to Code Section
19-11-13; or
(IV) A voluntary acknowledgment of paternity that is admissible to establish
parentage of the child under subsection (j) of Code Section 19-11-135;
</ins> (iv)(I) The father has signed the birth certificate of the child.
<ins>(II) The name or social security account number of the father appears on the birth
certificate of the child or on a certified copy of such birth certificate with the written
consent of the father in the manner provided by subsection (a) of Code Section
19-7-46.1 or paragraph (2) of subsection (e) of Code Section 31-10-9.
(III) The father has acknowledged paternity and the social security account
information of the father is entered on the birth certificate of the child in the manner
provided by subsection (a) of Code Section 31-10-9.1;</ins> <del>or
</del> (v) <ins>The father has otherwise acknowledged paternity under oath in any manner
satisfying the definition set forth in paragraph (14) of Code Section 19-11-3 or the
requirements of subsection (a) of Code Section 19-11-14; or
(vi)</ins> There is other clear and convincing evidence that the child is the child of the
father.
(B)(i) Subparagraph (A) of this paragraph notwithstanding, a child born out of
wedlock may inherit from or through the father, other children of the father, or any
paternal kin by reason of the paternal kinship if evidence of the rebuttable
presumption of paternity described in this subparagraph is filed with the court before
which proceedings on the estate are pending and the presumption is not overcome to
the satisfaction of the trier of fact by clear and convincing evidence.
(ii) There shall exist a rebuttable presumption of paternity of a child born out of
wedlock if:
<ins>(I) The child was born to a mother who was a recipient intended parent as the result
of an embryo relinquishment pursuant to Article 2 of Chapter 8 of Title 19, the
child's mother was not married to the presumptive father at the time of the birth of
the child, the child's mother and presumptive father each, as a recipient intended
parent, executed a written contract satisfying the requirements of subsection (a) of
Code Section 19-8-41, the child is presumed to be the legal child of the presumptive
father under subsection (d) of Code Section 19-8-41, and no expedited order of
adoption or parentage complying with the requirements of Code Section 19-8-43
has been entered by a court of competent jurisdiction as a final order vesting
parental rights and responsibilities in the child's presumptive father as a recipient
intended parent; or
(II) Scientifically credible</ins> parentage-determination genetic testing establishes at
least a 97 percent probability of paternity. <del>Parentage-determination</del> <ins>Scientifically
credible parentage-determination</ins> genetic testing shall include, but not <ins>necessarily
</ins> be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme,
and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA)
probes. <ins>Parentage-determination genetic testing shall be of a type reasonably relied
upon by experts in the field of genetic testing; shall be conducted by a laboratory
accredited by the AABB, formerly known as the American Association of Blood
Banks, or a successor to its functions, or by an accrediting body designated by the
secretary of the United States Department of Health and Human Services; and shall
</ins>
<ins>be performed by a duly qualified licensed practicing physician, duly qualified
immunologist, or other duly qualified person; provided, however, that in all cases
the court before which proceedings on the estate are pending shall determine the
number and qualifications of the experts.
</ins> (C) If any one of the requirements of divisions (i) through <del>(v)</del> <ins>(vi)</ins> of subparagraph (A)
of this paragraph is fulfilled, or if the presumption of paternity set forth in subparagraph
(B) of this paragraph shall have been established and shall not have been rebutted by
<ins>the presentation of</ins> clear and convincing evidence <ins>as determined by the trier of fact,</ins> a
child born out of wedlock may inherit in the same manner as though legitimate from
and through the child's father, the other children of his or her father, and any other
paternal kin;.
<ins>(D) In determining whether clear and convincing evidence has been presented under
this paragraph, the trier of fact may consider and determine the relevance, materiality,
and weight of any admissible evidence; provided, however, that:
(i) The requirement of reasonable certainty only, as provided by subsection (a) of
Code Section 24-14-40, shall not apply to such determination; and
(ii) The party bearing the burden of proof that the child is the child of the father by
the presentation of clear and convincing evidence under division (vi) of subparagraph
(A) of this paragraph shall not be relieved from the onus of proving identity, as
provided by subsection (b) of Code Section 24-14-40.
(E) Except as provided by division (d)(2)(B)(i) of Code Section 19-7-22, nothing in
this paragraph shall be applied or construed to abrogate or limit:
(i) The jurisdiction of a probate court or a superior court under Code Section 53-2-20
to resolve judicially the identity or interest of any heir in accordance with Article 2
of this chapter; or
(ii) The effect of the findings of such a court in such a proceeding pursuant to Code
Section 53-2-26;
</ins>
(3) In distributions under this Code section, the children of a deceased child born out of
wedlock shall represent that deceased child <ins>in the manner provided by Code Section
53-2-1; and
(4) The limitation imposed by subsection (b) of Code Section 19-11-14 upon the full
faith and credit to be given by the courts of this state to a determination of paternity made
by another state shall not affect the rights of inheritance of a child under a voluntary
acknowledgment or an administrative or judicial determination otherwise satisfying the
requirements of this Code section."
</ins> SECTION 36.
Said title is further amended by revising Code Section 53-2-4, relating to inheritance from
children born out of wedlock, as follows:
"53-2-4.
(a) The mother of a child born out of wedlock, the other children of the mother, and other
maternal kin may inherit from and through the child born out of wedlock in the same
manner as though the child were legitimate.
(b) The father of a child born out of wedlock, the other children of the father, and other
paternal kin may inherit from and through the child born out of wedlock in the same
manner as if the child were legitimate if:
(1) A court of competent jurisdiction has entered an order declaring the child to be
legitimate under the authority of Code Section 19-7-22 or such other authority as may be
provided by law;
(2) A court of competent jurisdiction has otherwise entered a court order establishing
paternity <ins>that has not been set aside as provided in Code Section 19-7-54; provided,
however, that:
(A) A temporary order of support entered under subsection (a) of Code Section
19-7-46.2 or an order of support entered under subsection (a) of Code Section 19-7-49
</ins>
<ins>shall not be conclusive under this paragraph unless such order also satisfies paragraph
(1) of this subsection;
(B) A support order, as such term is defined in Code Section 19-11-42, shall not be
conclusive under this paragraph unless such order also satisfies paragraph (1) of this
subsection;
(C) A temporary order of support entered under subsection (e) of Code Section
19-11-48 or a temporary order under Code Section 19-11-74 shall not be conclusive
under this paragraph unless such order also satisfies paragraph (1) of this subsection;
(D) A support order, as such term is defined in Code Section 19-11-101, shall not be
conclusive under this paragraph unless such order also satisfies paragraph (1) of this
subsection;
(E) A temporary child support order entered under paragraph (3) of subsection (b) of
Code Section 19-11-140 shall be conclusive under this paragraph. Any other temporary
child support order entered under subsection (b) of Code Section 19-11-140 shall not
be conclusive under this paragraph unless such order also satisfies paragraph (1) of this
subsection;
(F) For purposes of this paragraph, an administrative determination of paternity made
pursuant to subsection (b) of Code Section 19-7-40 shall have the same force and effect
as a judicial decree;
(G) For purposes of this paragraph, a court order for child support, as such term is
defined in Code Section 19-11-3, issued by an administrative or quasi-judicial entity
of this state or another state shall have the same force and effect as a judicial decree;
(H) For purposes of this paragraph, a judgment determining parentage of a child issued
by a tribunal or a foreign tribunal, as such terms are defined in Code Section 19-11-101,
shall be given the same force and effect as such judgment would be given in the
tribunals of Georgia, as designated by subsection (a) of Code Section 19-11-102; and
</ins>
<ins>(I) Nothing in this paragraph shall be applied or construed to make available to the
probate courts the information contained in the state case registry pursuant to
subsection (e) of Code Section 19-11-39;
(3)(A)</ins> The father has, during the lifetime of the child, executed a sworn statement
signed by the father attesting to the parent-child relationship, <ins>including, but not limited
to:
(i) A voluntary acknowledgment of legitimation that was valid under the former
provisions of Code Section 19-7-21.1 and was executed on or before June 30, 2016;
(ii) A voluntary acknowledgment of paternity that satisfies the requirements of
subsection (b) of Code Section 19-7-46.1 and is neither timely rescinded nor
successfully challenged as provided by subsection (b) or (c) of Code Section
19-7-46.1;
(iii) An acknowledgment of paternity made under oath pursuant to Code Section
19-11-13; or
(iv) A voluntary acknowledgment of paternity that is admissible to establish
parentage of the child under subsection (j) of Code Section 19-11-135.;
(B) However,</ins> <del>provided, however, that</del> when the court determines by clear and
convincing evidence that the father caused his child to be conceived as a result of
having nonconsensual sexual intercourse with the mother of his child or when the
mother is less than ten years of age, such sworn statement shall be insufficient for
purposes of this subsection;
(4) <ins>During</ins> <del>The father has, during</del> the lifetime of the child,:
<ins>(A) The father has</ins> signed the birth certificate of the child; <del>or
</del> <ins>(B) The name or social security account number of the father appears on the birth
certificate of the child or on a certified copy of such birth certificate with the written
consent of the father in the manner provided by subsection (a) of Code Section
19-7-46.1 or paragraph (2) of subsection (e) of Code Section 31-10-9; or
</ins>
<ins>(C) The father has acknowledged paternity and the social security account information
of the father has been entered on the birth certificate of the child in the manner provided
by subsection (a) of Code Section 31-10-9.1;
(5) During the lifetime of the child, the father has otherwise acknowledged paternity
under oath in any manner satisfying the definition set forth in paragraph (14) of Code
Section 19-11-3 or the requirements of subsection (a) of Code Section 19-11-14;
provided, however, that, when the court determines by clear and convincing evidence that
the father caused his child to be conceived as a result of having nonconsensual sexual
intercourse with the mother of his child or when the mother is less than ten years of age,
such acknowledgment under oath shall be insufficient for purposes of this subsection; or
</ins> <del>(5)(6)</del> The presumption of paternity described in division (2)(B)(ii) of Code Section
53-2-3 has been established and has not been rebutted by <ins>the presentation of</ins> clear and
convincing evidence <ins>as determined by the trier of fact.
(c) In determining whether clear and convincing evidence has been presented under
paragraph (6) of subsection (b) of this Code section, the trier of fact may consider and
determine the relevance, materiality, and weight of any admissible evidence; provided,
however, that the requirement of reasonable certainty only, as provided by subsection (a)
of Code Section 24-14-40, shall not apply to such determination.
(d) Except as provided by division (d)(2)(B)(ii) of Code Section 19-7-22, nothing in
subsection (b) of this Code section shall be applied or construed to abrogate or limit:
(1) The jurisdiction of a probate court or a superior court under Code Section 53-2-20
to resolve judicially the identity or interest of any heir in accordance with Article 2 of this
chapter; or
(2) The effect of the findings of such a court in such a proceeding pursuant to Code
Section 53-2-26.
(e) The limitation imposed by subsection (b) of Code Section 19-11-14 upon the full faith
and credit to be given by the courts of this state to a determination of paternity made by
</ins>
<ins>another state shall not affect the rights of inheritance of the father of a child born out of
wedlock, the other children of the father, and other paternal kin under a voluntary
acknowledgment or an administrative or judicial determination otherwise satisfying the
requirements of subsection (b) of this Code section."
</ins> SECTION 37.
Said title is further amended by revising Code Section 53-2-5, relating to inheritance from
children conceived by artificial insemination, as follows:
"53-2-5.
<ins>(a)</ins> An individual conceived by artificial insemination, <ins>in vitro fertilization, or other similar
method of assisted reproduction</ins> and presumed legitimate in accordance with Code Section
19-7-21 shall be considered a child of the parents and entitled to inherit under the laws of
intestacy from the parents and from relatives of the parents, and the parents and relatives
of the parents shall likewise be entitled to inherit as heirs from and through such individual.
<ins>(b) Subsection (a) of this Code section shall be subject to Article 2 of Chapter 8 of Title
19, and, in the event of a conflict, the provisions of such article shall prevail."
</ins> SECTION 38.
Said title is further amended by adding a new Code section to Article 1 of Chapter 2, relating
to descent and distribution, to read as follows:
<ins>"53-2-9.
As used in this article, the term 'child born out of wedlock' shall have the same meaning
as set forth in Code Section 19-7-23."
</ins> SECTION 39.
Said title is further amended by revising Code Section 53-2-20, relating to jurisdiction of
probate or superior court, as follows:
"53-2-20.
<ins>(a)</ins> The identity or interest of any heir may be resolved judicially upon application to the
probate court that has jurisdiction by virtue of a pending administration or that would have
jurisdiction in the event of an administration of the estate of the decedent. Alternatively,
the petition may be filed in the superior court of the county where the probate court having
jurisdiction, as defined in this Code section, is located; provided, however, that, if the
petition is filed in connection with a contested proceeding to determine a purported heir's
entitlement to a year's support from the decedent's estate pursuant to Chapter 3 of this title,
such petition must be filed in the probate court having jurisdiction.
<ins>(b)</ins> The proceedings for the determination of such questions shall conform to the
requirements set forth in this article.
<ins>(c) Regardless of its terms, an agreement, other than an agreement approved in accordance
with Article 3 of Chapter 7 of Title 19 by a court having jurisdiction under Code Section
19-7-40, between an alleged or presumed father of an individual claiming to be an heir and
such individual claiming to be an heir or the mother of such individual claiming to be an
heir shall not bar a petition under this article."
</ins> SECTION 40.
Said title is further amended by revising Code Section 53-2-21, relating to filing of petition,
as follows:
"53-2-21.
<ins>(a)</ins> Any personal representative, guardian, conservator, <del>committee,</del> trustee, <ins>trust director,
other</ins> fiduciary, or other person having a status <del>which</del> <ins>that either</ins> by operation of law or
<ins>pursuant to</ins> written instrument devolves upon such person a duty of distributing property
to heirs may file a petition for determination of heirship as provided in Code Section
53-2-20. The petition shall allege:
<ins>(1) The</ins> <del>the</del> names, addresses, ages, and relationship, so far as known to the petitioner,
of all parties <del>at</del> <ins>in</ins> interest, other than creditors, and the nature and character of such
interests.; <ins>and
(2) Whether</ins> <del>The petition shall further allege whether</del> the petitioner has reason to
apprehend that there may be others entitled to participate in the distribution whose names
1000 are unknown to the petitioner.
1001 <ins>(b) With respect to the estate of a decedent who the petitioner knows or has reason to
</ins> 1002 <ins>apprehend is an obligor within the meaning of subparagraph (B) of paragraph (17) of Code
</ins> 1003 <ins>Section 19-11-101, an individual who is an obligee within the meaning of subparagraph (C)
</ins> 1004 <ins>of paragraph (16) of Code Section 19-11-101 is a party in interest for purposes of
</ins> 1005 <ins>subsection (a) of this Code section."
</ins> 1006 SECTION 41.
1007 Said title is further amended by revising Code Section 53-2-22, relating to petition by person
1008 claiming to be heir or distributee, as follows:
1009 "53-2-22.
1010 <ins>(a)</ins> Any individual claiming to be an heir or any person in any way interested as a
1011 distributee in any property under the laws of intestacy may apply to either the probate court
1012 or the superior court specified in Code Section 53-2-20 to have the claim of heirship and
1013 quantity of interest established. The petition in such a case shall contain the same
1014 averments as to all parties <del>at</del> <ins>in</ins> interest required of persons filing under Code Section
1015 53-2-21 with the person charged with the duty of distribution being named as a party.
1016 <ins>(b) With respect to the estate of a decedent who is an obligor within the meaning of
</ins> 1017 <ins>subparagraph (B) of paragraph (17) of Code Section 19-11-101, an individual who is an
</ins> 1018 <ins>obligee within the meaning of subparagraph (C) of paragraph (16) of Code Section
</ins> 1019 <ins>19-11-101 is a party in interest who may file a petition for determination of heirship under
</ins> 1020 <ins>subsection (a) of this Code section."
</ins>
1021 SECTION 42.
1022 Said title is further amended by revising Code Section 53-2-23, relating to superior court
1023 procedure, as follows:
1024 "53-2-23.
1025 <ins>(a)</ins> Upon the filing in a superior court of a petition described in Code Section 53-2-21 or
1026 53-2-22, service on the parties in interest shall be effected in the same manner as prescribed
1027 in cases in which equitable relief is sought; <del>and the</del> <ins>provided, however, that the superior
</ins> 1028 <ins>court additionally may order service in the manner provided by Code Section 19-7-41. The
</ins> 1029 case shall thereafter proceed to judgment in the manner provided for such cases by the rules
1030 of practice in the superior courts.
1031 <ins>(b) With respect to a direct request seeking determination of parentage of a child pursuant
</ins> 1032 <ins>to Part 7 of Article 3 of Chapter 11 of Title 19 that is filed by a petitioner in the superior
</ins> 1033 <ins>court as a designated tribunal under subsection (a) of Code Section 19-11-102, this article
</ins> 1034 <ins>shall apply in the proceeding, as provided by subsection (a) of Code Section 19-11-184, to
</ins> 1035 <ins>the extent the petitioner seeks such determination of parentage for the purpose of
</ins> 1036 <ins>establishing the identity or interest of such child as an heir of the decedent; provided,
</ins> 1037 <ins>however, that nothing in this subsection shall be applied or construed to expand or extend
</ins> 1038 <ins>the jurisdiction of the probate courts for purposes of Article 3 of Chapter 11 of Title 19, the
</ins> 1039 <ins>'Uniform Interstate Family Support Act,' or to expand or extend the jurisdiction of the
</ins> 1040 <ins>Office of State Administrative Hearings and the Department of Human Services for
</ins> 1041 <ins>purposes of this article."
</ins> 1042 SECTION 43.
1043 Said title is further amended by revising Code Section 53-2-24, relating to probate court
1044 procedure, as follows:
1045 "53-2-24.
1046 Upon the filing in a probate court of a petition described in Code Section 53-2-21 or
1047 53-2-22, a citation shall be issued and parties in interest shall be served as provided in
1048 Chapter 11 of this title; <ins>provided, however, that the probate court additionally may order
</ins> 1049 <ins>service in the manner provided by Code Section 19-7-41."
</ins> 1050 SECTION 44.
1051 Said title is further amended by revising Code Section 53-2-25, relating to intervention by
1052 person claiming to be heir or distributee, as follows:
1053 "53-2-25.
1054 Any individual claiming to be an heir or any person in any way interested as a distributee
1055 and who is not named as such in any petition filed and pending under this article may file
1056 a motion to intervene in the proceeding <ins>pursuant to Code Section 9-11-24."
</ins> 1057 SECTION 45.
1058 Said title is further amended by revising Code Section 53-2-26, relating to effect of findings
1059 of court, as follows:
1060 "53-2-26.
1061 <ins>(a)</ins> In the absence of fraud, the findings of the superior court or the probate court <ins>in a
</ins> 1062 <ins>proceeding brought under this article</ins> shall be binding and conclusive as to every person
1063 and as to every issue decided.
1064 <ins>(b) With respect to the judgment of the superior court or the probate court in a proceeding
</ins> 1065 <ins>brought under this article, nothing in subsection (a) of this Code section shall be applied
</ins> 1066 <ins>or construed to abrogate or infringe:
</ins> 1067 <ins>(1) Any right of appeal provided by Title 5; or
</ins> 1068 <ins>(2) Any right to relief provided by Code Section 9-11-60."
</ins>
1069 SECTION 46.
1070 Said title is further amended by revising Code Section 53-2-27, relating to DNA testing for
1071 kinship, procedure, and costs, as follows:
1072 "53-2-27.
1073 <ins>(a)(1)</ins> When the kinship of any party in interest to a decedent is in controversy in any
1074 proceeding under this article, a probate court or superior court may order the removal and
1075 testing of deoxyribonucleic acid (DNA) samples from the remains of the decedent and
1076 from any party in interest whose kinship to the decedent is in controversy for purposes
1077 of comparison and determination of the statistical likelihood of such kinship; <ins>provided,
</ins> 1078 <ins>however, that no DNA testing shall be ordered with respect to any party in interest whose
</ins> 1079 <ins>kinship to the decedent was created or terminated by a decree of adoption, pursuant to
</ins> 1080 <ins>subsection (a) of Code Section 19-8-19, unless the right of inheritance of such party in
</ins> 1081 <ins>interest was not affected by the adoption, pursuant to subsection (b) of Code Section
</ins> 1082 <ins>19-8-19, or if such party in interest was conceived by means of artificial insemination,
</ins> 1083 <ins>in vitro fertilization, or other similar method of assisted reproduction; and provided,
</ins> 1084 <ins>further, that, for purposes of this subsection, a decree of adoption shall include:
</ins> 1085 <ins>(A) Any such decree entered pursuant to Article 1 of Chapter 8 of Title 19;
</ins> 1086 <ins>(B) Any such decree recognized in this state pursuant to Code Section 19-8-22; or
</ins> 1087 <ins>(C) A final order entered pursuant to Code Section 19-8-43.
</ins> 1088 <ins>(2)</ins> The court may order the disinterment of the decedent's remains if reasonably
1089 necessary to obtain <del>such</del> <ins>DNA</ins> samples <ins>for testing under this subsection.
</ins> 1090 (b) <del>The</del> <ins>An</ins> order <ins>pursuant to subsection (a) of this Code section</ins> may be <del>made</del> <ins>entered</ins> only
1091 on motion for good cause shown and upon notice to all parties in interest, and <ins>such order
</ins> 1092 shall specify the time, place, manner, conditions, and scope of the removal and testing of
1093 samples, and the person or persons by whom <del>it is</del> <ins>such removal and testing of DNA
</ins> 1094 <ins>samples are</ins> to be made. <ins>When such motion is made prior to the birth of a child whose
</ins> 1095 <ins>kinship to the decedent is in controversy, such order shall direct that the DNA testing be
</ins>
1096 <ins>conducted as soon as medically feasible after the birth of such child and may stay the
</ins> 1097 <ins>proceedings until after the child's birth except service of notice; provided, however, that
</ins> 1098 <ins>the requirements of paragraph (1) of subsection (b) of Code Section 53-2-1 shall remain
</ins> 1099 <ins>applicable to such child.</ins> Such motion, when made by a party in interest, shall be supported
1100 by affidavit setting forth:
1101 (1) The factual basis for a reasonable belief that the party in interest whose kinship to the
1102 decedent is in controversy is or is not so related; and
1103 (2) If disinterment of the decedent's remains is sought, the factual basis for a reasonable
1104 belief that reliable DNA samples from the decedent are not otherwise reasonably
1105 available from any other source.
1106 (c) Upon request <ins>of a party in interest to a proceeding under this article or as ordered by
</ins> 1107 <ins>the court on its own motion in the exercise of its discretion,</ins> the movant shall, <ins>within ten
</ins> 1108 <ins>days after such request is made or such order is entered, but in no event later than ten days
</ins> 1109 <ins>prior to the date of a hearing at which such report may be introduced into evidence,</ins> deliver
1110 to all parties in interest a copy of a detailed written report of the tester and of any other
1111 expert <ins>or other qualified person</ins> involved in the determination of such statistical likelihood
1112 setting out his or her findings, including the results of all tests made and conclusions or
1113 opinions based thereon. <ins>Unless a party in interest objects in writing within seven days after
</ins> 1114 <ins>receiving such report and prior to the date of such hearing, such report shall be admitted
</ins> 1115 <ins>in evidence without the need for foundation testimony or other proof of authenticity or
</ins> 1116 <ins>accuracy. When a timely objection is filed, such report shall be admitted in evidence when
</ins> 1117 <ins>offered by a duly qualified licensed practicing physician, duly qualified immunologist, or
</ins> 1118 <ins>other duly qualified person; provided, however, that in all cases the court shall determine
</ins> 1119 <ins>the number and qualifications of the experts. Other relevant evidence shall be admitted as
</ins> 1120 <ins>is deemed appropriate by the court. To provide any party in interest an adequate
</ins> 1121 <ins>opportunity to be heard or as otherwise appears reasonably necessary to a just
</ins> 1122 <ins>determination in a proceeding under this article, the court shall grant a continuance of any
</ins>
1123 <ins>such hearing. Upon motion of any party in interest or on the court's own motion, any
</ins> 1124 <ins>hearing or trial held in a proceeding under this article may be held in closed court without
</ins> 1125 <ins>any person other than those necessary to the proceeding being admitted.
</ins> 1126 (d)(1) The costs of obtaining and testing of <del>such</del> <ins>DNA</ins> samples, including the costs of
1127 disinterment and reinterment of the remains of the decedent, if necessary, as well as the
1128 costs of providing the report, shall be assessed against and paid by the moving party, <ins>and
</ins> 1129 <ins>the court may award such costs as part of its final decree; provided, however, that the
</ins> 1130 <ins>court may, in its discretion after all parties in interest have been given reasonable
</ins> 1131 <ins>opportunity to be heard, cast all or part of such costs against one or more parties in
</ins> 1132 <ins>interest upon entering a finding of fact that any such party has asserted in bad faith a
</ins> 1133 <ins>position with respect to the kinship in controversy in a proceeding under this article or
</ins> 1134 <ins>has failed unreasonably to cooperate with an order for DNA testing entered pursuant to
</ins> 1135 <ins>this Code section. The costs of disinterment may include a reasonable fee for services
</ins> 1136 <ins>provided by a cemetery company in connection therewith, subject to the limitation upon
</ins> 1137 <ins>such charges imposed by subsection (d) of Code Section 10-14-17.
</ins> 1138 <ins>(2) Except as otherwise provided by paragraph (1) of this subsection, the court may, in
</ins> 1139 <ins>its discretion after all parties in interest have been given reasonable opportunity to be
</ins> 1140 <ins>heard, order reasonable fees of counsel, experts, and guardians ad litem and other costs
</ins> 1141 <ins>of the proceeding, including pretrial proceedings, to be paid by the parties in interest in
</ins> 1142 <ins>proportions and at times determined by the court.
</ins> 1143 <ins>(3) The trier of fact shall receive without foundation or the need for third-party testimony
</ins> 1144 <ins>evidence of the costs and fees provided for by this subsection, and the evidence so
</ins> 1145 <ins>presented shall constitute prima-facie evidence of the amounts of the costs so incurred.
</ins> 1146 <ins>Copies of bills for the obtaining and testing of DNA samples, including the costs of
</ins> 1147 <ins>disinterment and reinterment of the remains of the decedent, if necessary, furnished to all
</ins> 1148 <ins>parties in interest at least ten days prior to the date of a hearing at which such copies of
</ins> 1149 <ins>bills may be introduced into evidence, are admissible in evidence to prove that the
</ins>
1150 <ins>charges billed were reasonable, necessary, and customary; provided, however, that
</ins> 1151 <ins>nothing in this paragraph shall be construed to limit the right of a thorough and sifting
</ins> 1152 <ins>cross-examination as to such evidence.
</ins> 1153 <ins>(e) DNA testing performed pursuant to this Code section shall be conducted by a
</ins> 1154 <ins>laboratory certified by the American Association of Blood Banks, shall be conducted so
</ins> 1155 <ins>that the results meet the standards the American Association of Blood Banks requires in
</ins> 1156 <ins>order for such results to be admitted as evidence in a court of law, and shall be performed
</ins> 1157 <ins>by a duly qualified licensed practicing physician, duly qualified immunologist, or other
</ins> 1158 <ins>duly qualified person; provided, however, that in all cases the court before which
</ins> 1159 <ins>proceedings on the estate are pending shall determine the number and qualifications of the
</ins> 1160 <ins>experts.
</ins> 1161 <ins>(f) An order for DNA testing entered pursuant to this Code section shall be enforceable by
</ins> 1162 <ins>contempt; provided, however, that, if the movant refuses to submit to such an order, the
</ins> 1163 <ins>court may, in its discretion after all parties in interest have been given reasonable
</ins> 1164 <ins>opportunity to be heard, dismiss or strike the movant's pleadings upon motion by any party
</ins> 1165 <ins>in interest or on the court's own motion.
</ins> 1166 <ins>(g) Except as ordered by the court for good cause shown pursuant to subsection (b) of this
</ins> 1167 <ins>Code section, the genetic material collected for DNA testing performed pursuant to this
</ins> 1168 <ins>Code section:
</ins> 1169 <ins>(1) If collected through the disinterment of the decedent's remains, shall be destroyed
</ins> 1170 <ins>within a reasonable time as determined by the court;
</ins> 1171 <ins>(2) If made available from a source other than through the disinterment of the decedent's
</ins> 1172 <ins>remains, shall be destroyed or returned in the manner reasonably directed by such source
</ins> 1173 <ins>or in accordance with such source's standard rules and regulations; and
</ins> 1174 <ins>(3) Shall not be shared with any other person or entity except to the extent reasonably
</ins> 1175 <ins>necessary for compliance with paragraphs (1) and (2) of this subsection.
</ins>
1176 <ins>(h) The disinterment and reinterment of the decedent's remains in accordance with a court
</ins> 1177 <ins>order entered pursuant to subsection (a) of this Code section:
</ins> 1178 <ins>(1) Shall not require a permit under Code Section 12-3-52, 12-3-82, or 36-72-4 as a
</ins> 1179 <ins>condition precedent to such disinterment;
</ins> 1180 <ins>(2) Shall not require authorization under subsection (f) of Code Section 31-10-20 as a
</ins> 1181 <ins>condition precedent to such disinterment or reinterment;
</ins> 1182 <ins>(3) Shall not constitute a disturbance, destruction, defacing, mutilation, removal, or
</ins> 1183 <ins>exposure of interred human remains under Code Section 31-21-6;
</ins> 1184 <ins>(4) Shall not constitute a violation of any provision of Code Section 31-21-44;
</ins> 1185 <ins>(5) Shall be supervised, monitored, or carried out as provided in Code Section 36-72-15
</ins> 1186 <ins>when such disinterment or reinterment is in an abandoned cemetery or burial ground, as
</ins> 1187 <ins>defined in Code Section 36-72-2; provided, however, that nothing in Code Section
</ins> 1188 <ins>36-72-15 shall affect the assessment, allocation, or payment of costs ordered by the court
</ins> 1189 <ins>pursuant to subsection (d) of this Code section; and
</ins> 1190 <ins>(6) May be done by any person who is or is able to be authorized to disinter the remains
</ins> 1191 <ins>of a human body under Code Section 45-16-45 or subsection (b) of Code Section
</ins> 1192 <ins>45-16-51; provided, however, that nothing in this paragraph shall limit the persons whom
</ins> 1193 <ins>the court may designate to perform such disinterment pursuant to subsection (b) of this
</ins> 1194 <ins>Code section.
</ins> 1195 <ins>(i) Any person disinterring or reinterring a decedent's remains in accordance with a court
</ins> 1196 <ins>order entered pursuant to subsection (a) of this Code section shall be deemed to be a person
</ins> 1197 <ins>having duties imposed upon that person relating to the possession or disposition of dead
</ins> 1198 <ins>bodies while in the performance of said duties within the meaning of subsection (b) of
</ins> 1199 <ins>Code Section 31-21-44.
</ins> 1200 <ins>(j) DNA testing performed pursuant to this Code section shall be deemed to be genetic
</ins> 1201 <ins>testing conducted to obtain information for therapeutic or diagnostic purposes within the
</ins> 1202 <ins>meaning of subsection (a) of Code Section 33-54-3; provided, however, that DNA testing
</ins>
1203 <ins>performed pursuant to this Code section may be conducted without written consent prior
</ins> 1204 <ins>to the decedent's death.
</ins> 1205 <ins>(k) Any court issuing an order with respect to a determination of heirship under this article
</ins> 1206 <ins>shall not, insofar as possible, attach the written results from DNA testing to any pleading
</ins> 1207 <ins>or court order."
</ins> 1208 SECTION 47.
1209 Said title is further amended by adding a new Code section to Article 2 of Chapter 2, relating
1210 to judicial determination of heirs and interests, to read as follows:
1211 <ins>"53-2-28.
</ins> 1212 <ins>(a) Any proceeding brought under this article is a civil action, which shall be governed by
</ins> 1213 <ins>the rules of civil procedure except as otherwise expressly provided in this article. Except
</ins> 1214 <ins>to the extent otherwise provided in Code Section 53-2-27, expressly provided in this Code
</ins> 1215 <ins>section, or modified by another applicable statute, the common law as expounded by
</ins> 1216 <ins>Georgia courts shall continue to be applied to the admission and exclusion of evidence and
</ins> 1217 <ins>to procedures at trial in proceedings brought under this article.
</ins> 1218 <ins>(b) If in any proceeding brought under this article no answer or objection has been filed
</ins> 1219 <ins>within the time required by Chapter 11 of this title or by Chapter 11 of Title 9, the 'Georgia
</ins> 1220 <ins>Civil Practice Act,' as applicable, the case shall automatically become in default unless the
</ins> 1221 <ins>time for filing such answer or objection has been extended as provided by law. In any
</ins> 1222 <ins>proceeding brought under this article that has become in default:
</ins> 1223 <ins>(1) In the probate court, the default thereafter shall be governed by Code Section
</ins> 1224 <ins>15-9-47; and
</ins> 1225 <ins>(2) In the superior court, the default thereafter shall be governed by Code Section
</ins> 1226 <ins>9-11-55.
</ins> 1227 <ins>(c) In proceedings under this article, the provisions of Title 19 shall be supplemental to the
</ins> 1228 <ins>provisions of this title, and the provisions of this title shall be construed and applied in para
</ins>
1229 <ins>materia with the provisions of Title 19, except to the extent that the provisions of Title 19
</ins> 1230 <ins>are in conflict with or are incompatible with the provisions of this title."
</ins> 1231 SECTION 48.
1232 Said title is further amended by revising subsection (c) of Code Section 53-2-40, relating to
1233 petition, as follows:
1234 "(c) The personal representative of <ins>the estate of</ins> a deceased heir is authorized to agree to
1235 the division on behalf of <del>that</del> <ins>such</ins> heir. <ins>If the estate of a deceased heir has no personal
</ins> 1236 <ins>representative, such deceased heir's estate may be represented in the proceeding by a
</ins> 1237 <ins>guardian, pursuant to Code Section 53-11-2, and such guardian is authorized to agree to the
</ins> 1238 <ins>division on behalf of such heir."
</ins> 1239 SECTION 49.
1240 Said title is further amended by revising subsection (b) of Code Section 53-2-51, relating to
1241 procedure, as follows:
1242 "(b) Upon filing of the petition, the probate court:
1243 <ins>(1) Shall</ins> <del>shall</del> issue a citation as provided <ins>in</ins> Chapter 11 of this title, requiring the heirs,
1244 <del>if any,</del> to file any objection to the petition by a date that is at least 60 days from the date
1245 of the citation,;
1246 <ins>(2) Shall</ins> <del>and shall</del> order notice by publication to all heirs of the decedent as provided in
1247 Code Section 53-11-4; <ins>and
</ins> 1248 <ins>(3) May direct any additional service, as provided in Code Section 53-11-5."
</ins> 1249 SECTION 50.
1250 Said title is further amended by revising paragraph (2) of subsection (b) of and by adding a
1251 new subsection to Code Section 53-4-5, relating to written statement or list disposing of
1252 items of tangible personal property, to read as follows:
1253 "(2) Describes the items and the <del>beneficiaries</del> <ins>recipients thereof</ins> with reasonable
1254 certainty; and"
1255 <ins>"(c) A written statement or list meeting the requirements of subsection (b) of this Code
</ins> 1256 <ins>section shall not be deemed to be the testator's will or a part of such testator's will."
</ins> 1257 SECTION 51.
1258 Said title is further amended by adding a new subsection to Code Section 53-4-20, relating
1259 to required writing, signing, witnesses, and codicil, to read as follows:
1260 <ins>"(d) A will or codicil that was executed or attested pursuant to the authority of the
</ins> 1261 <ins>Governor's Executive Order 04.09.20.01 shall not be treated as invalid solely because it
</ins> 1262 <ins>was not executed or attested in the testator's physical presence."
</ins> 1263 SECTION 52.
1264 Said title is further amended by revising Code Section 53-5-8, relating to notice to
1265 beneficiary provided by personal representative and representation for beneficiaries, as
1266 follows:
1267 "53-5-8.
1268 (a) <del>As used in this Code section, the term 'beneficiary' means a person, including a trust,
</del> 1269 <del>that is designated in a will to take an interest in real or personal property; that has a present
</del> 1270 <del>interest, including, but not limited to, a vested remainder interest, but not including a trust
</del> 1271 <del>beneficiary where there is a trustee who is not also the personal representative required to
</del> 1272 <del>give notice; and whose identity and whereabouts are known or may be determined by
</del> 1273 <del>reasonable diligence.</del> <ins>The personal representative shall have a duty to notify the
</ins> 1274 <ins>beneficiaries of a testate estate of the probate of the will and the name and mailing address
</ins> 1275 <ins>of such personal representative; provided, however, that notice shall not be required to be
</ins> 1276 <ins>given to any beneficiary who:
</ins> 1277 <ins>(1) Has waived such right to notification in writing;
</ins>
1278 <ins>(2) Acknowledged service of and assented to the petition to probate the will, if such
</ins> 1279 <ins>personal representative was a petitioner; or
</ins> 1280 <ins>(3) Is such personal representative.
</ins> 1281 <ins>Such notification shall be given within six months from the date of qualification of the first
</ins> 1282 <ins>personal representative of a testate estate to serve.
</ins> 1283 (b) <del>Within 30 days following the issuance of letters testamentary or letters of
</del> 1284 <del>administration with the will annexed to the personal representative of a testate estate, such
</del> 1285 <del>personal representative shall send to all beneficiaries by certified or registered mail or
</del> 1286 <del>statutory overnight delivery, with return receipt requested, to his or her last known address
</del> 1287 <del>a notice informing such beneficiaries of the issuance of such letters to the personal
</del> 1288 <del>representative and providing the name, mailing address, and telephone number of such
</del> 1289 <del>personal representative. Provided, however, that notice shall not be required to any
</del> 1290 <del>beneficiary who has waived such right to notification in writing. Within 60 days following
</del> 1291 <del>the issuance of such letters, such personal representative shall file with the probate court
</del> 1292 <del>true and correct copies of such waivers and notices, the return receipts for each, and, with
</del> 1293 <del>respect to any such beneficiary whose identity and whereabouts are unknown, an affidavit
</del> 1294 <del>of diligent search attesting under oath to the efforts of such personal representative to
</del> 1295 <del>identify and locate such beneficiary.
</del> 1296 <del>(c)</del> A personal representative who, without sufficient cause, either fails to provide accurate
1297 information regarding such personal representative's name, mailing address, and telephone
1298 number within five business days of a request for such information by a beneficiary or by
1299 the probate court or otherwise fails to comply with the requirements of subsection <del>(b)</del> <ins>(a)
</ins> 1300 of this Code section, may be cited to appear and show cause as to why the personal
1301 representative's letters should not be revoked in the same manner as pursuant to Code
1302 Section 53-6-53.
1303 <ins>(c) Where there is a trust that is a beneficiary of a testate estate and there is not a trustee
</ins> 1304 <ins>who is not the personal representative, any notice or citation required by this Code section
</ins>
1305 <ins>shall be given to and may be waived by each beneficiary of such trust to whom income or
</ins> 1306 <ins>principal is required or authorized in the trustee's discretion to be distributed currently. For
</ins> 1307 <ins>purposes of this Code section, a trust beneficiary may be represented as provided in Code
</ins> 1308 <ins>Section 53-12-8.
</ins> 1309 (d) <del>For purposes of this Code section, a trust beneficiary may be represented as provided
</del> 1310 <del>in paragraph (3) of subsection (b) of Code Section 53-7-50.</del> <ins>Nothing in this Code section
</ins> 1311 <ins>shall alter or affect any time period established by Code Section 53-7-42, subsection (d)
</ins> 1312 <ins>of Code Section 53-8-15, or other applicable law."
</ins> 1313 SECTION 53.
1314 Said title is further amended by revising Code Section 53-6-1, relating to eligibility, as
1315 follows:
1316 "53-6-1.
1317 Any individual who is sui juris, regardless of citizenship or residency, is eligible to serve
1318 as a personal representative or temporary administrator of <ins>the estate of</ins> a decedent who dies
1319 domiciled in this state, subject to the requirements for qualification set forth in this chapter.
1320 Any other person is eligible to serve as a personal representative or temporary
1321 administrator of <ins>the estate of</ins> a decedent who dies domiciled in this state, subject to the
1322 requirements set forth in this chapter, provided <del>the</del> that such person is otherwise qualified
1323 to act as a fiduciary in this state <ins>pursuant to Code Section 7-1-242, Article 15 of Chapter
</ins> 1324 <ins>12 of this title, or other applicable law."
</ins> 1325 SECTION 54.
1326 Said title is further amended by revising subsections (b) and (c) of Code Section 53-6-50,
1327 relating to persons required to give and determination of amounts, as follows:
1328 "(b) A national banking association <ins>having the power to act as a fiduciary in Georgia
</ins> 1329 <ins>pursuant to Code Section 7-1-242, Article 15 of Chapter 12 of this title, or other applicable
</ins>
1330 <ins>law</ins> or a bank or trust company organized under the laws of this state that seeks to qualify
1331 as a personal representative of an intestate estate or temporary administrator shall not be
1332 required to give bond for the faithful performance of its duties unless its combined capital,
1333 surplus, and undivided profits are less than $400,000.00 as reflected in its last statement
1334 filed with the comptroller of the currency of the United States or the commissioner of
1335 banking and finance or unless the instrument under which it seeks to qualify expressly
1336 provides that it shall give bond.
1337 (c) A person petitioning to qualify as a personal representative of an intestate estate may
1338 be relieved from the requirement for giving bond by the unanimous consent of the heirs of
1339 the estate <ins>in the same manner as provided in subsection (b) of Code Section 53-7-1 for the
</ins> 1340 <ins>granting of powers to a personal representative.</ins> With respect to any heir who is not sui
1341 juris, consent may be given by the guardian of the individual, <ins>pursuant to Code Section
</ins> 1342 <ins>53-11-2.</ins> The personal representative of <ins>the estate of</ins> a deceased heir is authorized to
1343 consent for that heir. <ins>If the estate of a deceased heir has no personal representative, such
</ins> 1344 <ins>deceased heir's estate may be represented in the proceeding by a guardian, pursuant to Code
</ins> 1345 <ins>Section 53-11-2, and such guardian is authorized to consent for that heir.</ins> In no case may
1346 consent on behalf of an heir who is not sui juris <ins>or a deceased heir whose estate has no
</ins> 1347 <ins>personal representative</ins> be effective if the person consenting is the person petitioning to
1348 serve as personal representative."
1349 SECTION 55.
1350 Said title is further amended by revising subsection (a) of Code Section 53-6-60, relating to
1351 amount, as follows:
1352 "(a)(1) <ins>As used in this subsection, the terms 'beneficiary' and 'heir' shall apply as set forth
</ins> 1353 <ins>in Code Section 53-7-68.
</ins> 1354 <ins>(2) A personal representative</ins> <del>Personal representatives</del> shall be compensated as specified
1355 in either <del>the will or any</del> <ins>a</ins> written agreement entered into <ins>by the decedent and the personal
</ins>
1356 <ins>representative</ins> prior to the decedent's death or a written agreement signed by all the
1357 beneficiaries of a testate estate <ins>affected by the personal representative's compensation</ins> or
1358 <ins>by</ins> all the heirs of an intestate estate. <ins>In the absence of such a written agreement, a
</ins> 1359 <ins>personal representative shall be compensated as specified in the will.</ins> A written
1360 agreement between a testator and a personal representative shall be valid and binding
1361 upon the estate of the testator as fully and completely as if set forth in and made a part
1362 of the will.
1363 <ins>(3) If a beneficiary of a testate estate or an heir of an intestate estate is not sui juris, the
</ins> 1364 <ins>duly acting guardian or conservator of such heir or beneficiary shall be authorized to sign
</ins> 1365 <ins>an agreement specifying the compensation of the personal representative."
</ins> 1366 SECTION 56.
1367 Said title is further amended by revising paragraph (2) of subsection (b) of Code Section
1368 53-7-1, relating to general powers and duties of personal representative and additional
1369 powers, as follows:
1370 "(2) With respect to any beneficiary of a testate estate or heir of an intestate estate who
1371 is not sui juris, the consent required by paragraph (1) of this subsection may be given by
1372 such beneficiary's or heir's duly acting conservator or guardian. The personal
1373 representative of <ins>the estate of</ins> a deceased beneficiary or heir shall be authorized to
1374 consent on behalf of such deceased beneficiary or heir. <ins>If the estate of a deceased
</ins> 1375 <ins>beneficiary or heir has no personal representative, such deceased beneficiary's or heir's
</ins> 1376 <ins>estate may be represented in the proceeding by a guardian, pursuant to Code Section
</ins> 1377 <ins>53-11-2, and such guardian shall be authorized to consent on behalf of such deceased
</ins> 1378 <ins>beneficiary or heir."
</ins> 1379 SECTION 57.
1380 Said title is further amended by revising subsection (a) of Code Section 53-7-5, relating to
1381 powers, duties, and liabilities if more than one personal representative and safe deposit boxes
1382 or receptacles, as follows:
1383 "(a) If more than one personal representative is qualified and unless the will provides
1384 otherwise:
1385 (1) The personal representatives <del>must</del> <ins>shall</ins> act by their unanimous action; provided,
1386 however, that, while a personal representative is unable to act because of inaccessibility,
1387 illness, or other incapacity, or when a vacancy occurs for any other reason, the remaining
1388 personal representatives may act as if they were the only personal representatives if
1389 necessary to administer the estate; and
1390 (2) The personal representatives may delegate in writing to one or more of them the
1391 authority to act for all of them; provided, however, <del>that such delegation must satisfy the
</del> 1392 <del>requirements of Code Sections 10-6B-5 and 10-6B-40, and</del> that all the personal
1393 representatives remain liable for the actions of the personal representative who is
1394 authorized to act."
1395 SECTION 58.
1396 Said title is further amended by revising subsection (b) of Code Section 53-7-32, relating to
1397 waiver of right to receive and relieving personal representative of duty to make, as follows:
1398 "(b) By unanimous written consent, the beneficiaries of a testate estate or the heirs of an
1399 intestate estate may authorize the probate court to relieve the personal representative of the
1400 duty to make inventory in the same manner as <del>described</del> <ins>provided</ins> in subsection (b) of Code
1401 Section 53-7-1 <ins>for the granting of powers to a personal representative.</ins> Any such
1402 unanimous written consent, regardless of the date of execution, <del>which</del> <ins>that</ins> relieves the
1403 personal representative from making inventory shall also relieve the personal representative
1404 from sending a copy of the inventory to the heirs or beneficiaries."
1405 SECTION 59.
1406 Said title is further amended by revising subsections (b) and (d) of Code Section 53-7-41,
1407 relating to notice for creditors to render accounts, notification of creditors' claims,
1408 requirement of reasonable additional proof or accounting, and failure of creditors to give
1409 notice of claims, as follows:
1410 "(b) <ins>The</ins> <del>Every</del> personal representative shall, within 60 days from the date of qualification,
1411 publish a notice directed generally to all of the creditors of the estate to notify the personal
1412 representative of their claims and render an account of their demands for payment thereon.
1413 The personal representative's notice shall be published once a week for four weeks in the
1414 official newspaper of the county in which the personal representative qualified. No
1415 particular form shall be required for creditors to notify the personal representative of their
1416 claims, and such notification of a creditor's claim shall be sufficient for purposes of this
1417 Code section if given in writing, providing an account number or other identifying
1418 information or itemization adequate to establish the indebtedness as an obligation of the
1419 estate, and stating the principal balance and any applicable interest or other additional
1420 charges lawfully owed. An invoice or account statement satisfying the requirements of the
1421 preceding sentence of this subsection and generated by a creditor in the ordinary course of
1422 such creditor's business shall constitute sufficient notification to the personal representative
1423 of such creditor's claim if the personal representative actually receives such notification of
1424 the claim or if such creditor files such notification with the probate court having
1425 jurisdiction over the decedent's estate or sends such notification of the claim by electronic
1426 transmission, other form of wire or wireless communication, or by first-class mail or
1427 private carrier to the address of the decedent, the personal representative, or the attorney
1428 representing the personal representative; provided, however, that a notification of a claim
1429 sent by a creditor by electronic communication to an account for which the decedent is the
1430 user shall constitute sufficient notification to the personal representative of such creditor's
1431 claim only if the content of such electronic communication lawfully is disclosed to the
1432 personal representative pursuant to Chapter 13 of this title. As used in this subsection, the
1433 terms 'account',' 'content of an electronic communication',' 'electronic communication',' and
1434 'user' shall have the meaning provided by Code Section 53-13-2."
1435 "(d) Creditors who fail to notify the personal representative of their claims in the manner
1436 provided by subsection (b) of this Code section within three months from the date of
1437 publication of the personal representative's last notice shall lose all rights to an equal
1438 participation with creditors of equal priority to whom distribution is made before sufficient
1439 notification of such claims is given to the personal representative, and they may not hold
1440 the personal representative liable for a misappropriation of the funds. If, however, there
1441 are assets in the hands of the personal representative sufficient to pay such debts and if no
1442 claims of greater priority are unpaid, the assets shall be thus appropriated notwithstanding
1443 <ins>the</ins> failure of such creditors to <del>timely</del> notify the personal representative of their claims <ins>in
</ins> 1444 <ins>a timely manner."
</ins> 1445 SECTION 60.
1446 Said title is further amended by revising subsection (a) of Code Section 53-7-50, relating to
1447 petition by personal representative for discharge, citation and publication, hearing, and
1448 subsequently discovered estate, as follows:
1449 "(a) A personal representative who has fully performed all duties or who has been allowed
1450 to resign may petition the probate court for discharge from the office and from all liability.
1451 The petition shall:
1452 <ins>(1) State</ins> <del>state</del> that the personal representative has fully administered the estate of the
1453 decedent;
1454 <ins>(2) Set</ins> <del>and shall set</del> forth the names and addresses of all known heirs of an intestate
1455 decedent or beneficiaries of a testate decedent, including, <ins>as applicable, the personal
</ins> 1456 <ins>representative of the estate of or</ins> any persons who succeeded to the interest of any heir or
1457 beneficiary who died after the decedent died;
1458 <ins>(3) Name,</ins> <del>and shall name</del> which of the heirs or beneficiaries is or should be represented
1459 by a guardian. <del>The petition shall state</del> <ins>as provided in Code Section 53-11-2, including,
</ins> 1460 <ins>as applicable, any heir or beneficiary who died after the decedent died whose estate has
</ins> 1461 <ins>no personal representative;
</ins> 1462 <ins>(4) State</ins> that the personal representative has paid all claims against the estate or shall
1463 enumerate which claims of the estate have not been paid and the reason for such
1464 nonpayment.; <ins>and
</ins> 1465 <ins>(5) State</ins> <del>The petition shall also state</del> that the personal representative has filed all
1466 necessary inventory and returns or, alternatively, has been relieved of such filings by the
1467 testator, the heirs or beneficiaries, or the probate court."
1468 SECTION 61.
1469 Said title is further amended by revising Code Section 53-7-68, relating to mailing of return
1470 to heirs and beneficiaries and relieving personal representative of duty to file return, as
1471 follows:
1472 "53-7-68.
1473 (a) <ins>As used in this Code section, the term:
</ins> 1474 <ins>(1) 'Beneficiary' shall not apply to a person who is designated in a will to take an interest
</ins> 1475 <ins>in real or personal property after such person's interest in the estate has been satisfied.
</ins> 1476 <ins>(2) 'Heir' shall not apply to an individual who survives the decedent and is determined
</ins> 1477 <ins>under the rules of inheritance to take the property of the decedent that is not disposed of
</ins> 1478 <ins>by will after such individual's interest in the estate has been satisfied.
</ins> 1479 <ins>(b)</ins> Upon filing the annual return with the probate court, the personal representative shall
1480 <del>mail</del> <ins>send</ins> by first-class mail:
1481 <ins>(1) To each heir of an intestate estate or each beneficiary of the residue of a testate estate,
</ins> 1482 a copy of the return, but not the vouchers; <ins>and,</ins> <del>to each heir of an intestate estate or each
</del> 1483 <del>beneficiary of a testate estate. It
</del>
1484 <ins>(2) To each beneficiary of a specific, demonstrative, or general testamentary gift of a
</ins> 1485 <ins>testate estate, a copy of the portion of the return relevant to the beneficiary's interest in
</ins> 1486 <ins>the estate or other written statement containing such information, but not the vouchers;
</ins> 1487 <ins>provided, however, that it</ins> shall not be necessary to mail a copy of the return to any heir
1488 or beneficiary who is not sui juris or for the court to appoint a guardian for such person.
1489 <ins>(c)</ins> The personal representative shall file <ins>with the probate court</ins> a verified statement <del>with
</del> 1490 <del>the probate court stating that all required mailings of the return to heirs or beneficiaries
</del> 1491 <del>have been made</del> <ins>that the requirements of subsection (b) of this Code section have been
</ins> 1492 <ins>satisfied.
</ins> 1493 <ins>(d) In the case of a testamentary gift to a trustee of a trust, including, without limitation,
</ins> 1494 <ins>a trust created by the will, the term 'beneficiary' shall apply to the trustee and shall not
</ins> 1495 <ins>apply to the beneficiaries of the trust, provided that:
</ins> 1496 <ins>(1) If each trustee of the trust is also a personal representative of the estate, the term
</ins> 1497 <ins>'beneficiary' shall apply to those persons who, if the trust were funded, would be entitled
</ins> 1498 <ins>to annual reports from the trustee under subsection (b) of Code Section 53-12-243, taking
</ins> 1499 <ins>into account the provisions of the trust instrument and subsections (c) and (d) of Code
</ins> 1500 <ins>Section 53-12-243; and
</ins> 1501 <ins>(2) A beneficiary may be represented as provided in Code Section 53-12-8.
</ins> 1502 <ins>(e) In the case of a deceased heir or beneficiary, the term 'heir' or 'beneficiary' shall apply
</ins> 1503 <ins>to the personal representative of such heir's or beneficiary's estate.
</ins> 1504 <ins>(f) The determination of the persons to whom paragraphs (1) and (2) of subsection (b) of
</ins> 1505 <ins>this Code section apply, including, without limitation, the application of subsection (a), (d),
</ins> 1506 <ins>(e), or (h), shall be made as of the date the annual return was filed with the probate court.
</ins> 1507 <ins>(g) The determination of the persons who are required to constitute unanimous consent
</ins> 1508 <ins>under subsection (j) of this Code section, including, without limitation, the application of
</ins> 1509 <ins>subsection (a), (d), (e), or (h), shall be made as of the date of the petition is filed.
</ins>
1510 <ins>(h) If an heir or beneficiary is not sui juris, such heir's or beneficiary's duly acting
</ins> 1511 <ins>conservator or guardian shall:
</ins> 1512 <ins>(1) After a written request delivered to the personal representative, be entitled to receive
</ins> 1513 <ins>any report or written statement that would be required to be sent to such heir or
</ins> 1514 <ins>beneficiary under subsection (b) of this Code section if such heir or beneficiary were sui
</ins> 1515 <ins>juris; and
</ins> 1516 <ins>(2) Be authorized to give the consent required under subsection (j) of this Code section.
</ins> 1517 <del>(b)(i)</del> Any heir or beneficiary may waive individually the right to receive a copy of the
1518 annual return <ins>or of the portion of the annual return to which such heir or beneficiary would
</ins> 1519 <ins>be entitled under subsection (b) of this Code section</ins> by a written statement that is delivered
1520 to the personal representative. Such waiver may be revoked in writing at any time.
1521 <del>(c)(j)</del> <ins>As part of a petition, including, but not limited to, the petition for letters
</ins> 1522 <ins>testamentary, letters of administration with the will annexed, or letters of administration
</ins> 1523 <del>By unanimous written consent,</del> the heirs of an intestate estate or the beneficiaries of a
1524 testate estate may, <ins>by unanimous written consent,</ins> authorize the probate court to relieve the
1525 personal representative from filing annual returns <del>with them or</del> with the court, <ins>the
</ins> 1526 <ins>requirements of subsection (b) of this Code section,</ins> or both, <del>in the same manner as
</del> 1527 <del>provided in subsection (b) of Code Section 53-7-1 for the granting of powers to a personal
</del> 1528 <del>representative.</del> Any such unanimous written consent, regardless of the date of execution,
1529 that relieves the personal representative from filing annual returns with the court shall also
1530 relieve the personal representative from <del>sending a copy of the return to the heirs or
</del> 1531 <del>beneficiaries</del> <ins>the requirements of subsection (b) of this Code section."
</ins> 1532 SECTION 62.
1533 Said title is further amended by revising Code Section 53-7-69.1, relating to annual statement
1534 of receipts and disbursements, as follows:
1535 "53-7-69.1.
1536 (a) <del>Except as provided in subsection (b) of this Code section, a</del> <ins>A</ins> personal representative
1537 shall <del>furnish to the heirs of an intestate estate or the beneficiaries of the residuum of a
</del> 1538 <del>testate estate, at least annually, a statement of receipts and disbursements</del> <ins>send, at least
</ins> 1539 <ins>annually:
</ins> 1540 <ins>(1) To each heir of an intestate estate or each beneficiary of the residue of a testate estate,
</ins> 1541 <ins>a statement of receipts and disbursements; and
</ins> 1542 <ins>(2) To each beneficiary of a specific, demonstrative, or general testamentary gift of the
</ins> 1543 <ins>testate estate, a statement of any receipts and disbursements relevant to the beneficiary's
</ins> 1544 <ins>interest in the estate.
</ins> 1545 (b) Any heir or beneficiary may waive individually the right to receive a statement of
1546 receipts and disbursements <del>in the same manner as provided in subsection (b) of Code
</del> 1547 <del>Section 53-7-68 for waiving the right to receive a copy of an annual return</del> <ins>by a written
</ins> 1548 <ins>statement that is delivered to the personal representative. Such waiver may be revoked in
</ins> 1549 <ins>writing at any time.
</ins> 1550 <ins>(c)</ins> The heirs or beneficiaries may authorize the probate court to relieve the personal
1551 representative from furnishing statements of receipts and disbursements in the same
1552 manner as provided in <del>subsection (c) of</del> Code Section 53-7-68 for relieving the personal
1553 representative from filing annual returns. A testator may, by will, dispense with the
1554 necessity of the personal representative's furnishing a statement of receipts and
1555 disbursements in the same manner as provided in Code Section 53-7-69 for dispensing with
1556 the necessity of the personal representative's filing an annual return.; <ins>provided, however,
</ins> 1557 <ins>that such dispensation does not work any injury to creditors or persons other than
</ins> 1558 <ins>beneficiaries under the will. It shall not be necessary to furnish a statement of receipts and
</ins> 1559 <ins>disbursements to any heir or beneficiary who is not sui juris or for the probate court to
</ins> 1560 <ins>appoint a guardian for such person.
</ins>
1561 <ins>(d) When a personal representative has been relieved from furnishing statements of
</ins> 1562 <ins>receipts and disbursements, the probate court, on its own motion or on the representation
</ins> 1563 <ins>of any party in interest that the personal representative is mismanaging the estate, shall
</ins> 1564 <ins>order the personal representative to appear and show cause as to why statements of receipts
</ins> 1565 <ins>and disbursements should not be furnished or the personal representative's letters revoked.
</ins> 1566 <ins>Such order shall be served in person on the personal representative at least ten days prior
</ins> 1567 <ins>to the hearing. Failure to show cause shall authorize the court to require statements of
</ins> 1568 <ins>receipts and disbursements to be furnished or to revoke the letters or to take any other
</ins> 1569 <ins>action as may be necessary under the circumstances.
</ins> 1570 <ins>(e) For purposes of this Code section:
</ins> 1571 <ins>(1) The statement provided under subsection (a) of this Code section shall contain the
</ins> 1572 <ins>receipts and disbursements of principal and income that have occurred during the last
</ins> 1573 <ins>complete fiscal year of the estate or since the last accounting to that heir or beneficiary
</ins> 1574 <ins>and a statement of the assets and liabilities of the estate as of the end of the accounting
</ins> 1575 <ins>period, provided that the information in any statement required under paragraph (2) of
</ins> 1576 <ins>subsection (a) of this Code section shall be limited as provided in that paragraph;
</ins> 1577 <ins>(2) The terms 'heir' and 'beneficiary' shall apply as provided in Code Section 53-7-68;
</ins> 1578 <ins>(3) The determination of the persons entitled to receive statements under subsection (a)
</ins> 1579 <ins>of this Code section and the application of this subsection shall be made as of the final
</ins> 1580 <ins>day of the period covered by the statement;
</ins> 1581 <ins>(4) The determination of the persons who may authorize the probate court under
</ins> 1582 <ins>subsection (c) of this Code section and the application of this subsection shall be made
</ins> 1583 <ins>as of the date of the authorization; and
</ins> 1584 <ins>(5) If an heir or beneficiary is not sui juris, such heir's or beneficiary's duly acting
</ins> 1585 <ins>conservator or guardian shall:
</ins> 1586 <ins>(A) After a written request delivered to the personal representative, be entitled to
</ins> 1587 <ins>receive any statement of receipts and disbursements that would be required to be sent
</ins>
1588 <ins>to such heir or beneficiary under subsection (a) of this Code section if such heir or
</ins> 1589 <ins>beneficiary were sui juris; and
</ins> 1590 <ins>(B) Be authorized to give the consent required under subsection (b) of this Code
</ins> 1591 <ins>section.
</ins> 1592 <ins>(f) Nothing in this Code section shall affect the power of the probate court to require or
</ins> 1593 <ins>excuse an accounting under this part, Part 1 of this article, or other applicable law."
</ins> 1594 SECTION 63.
1595 Said title is further amended by revising Code Section 53-7-72, relating to docket of persons
1596 liable to make returns and failure to make returns, as follows:
1597 "53-7-72.
1598 <del>To ensure annual returns from every personal representative, it</del> <ins>It</ins> shall be the duty of the
1599 probate court to keep a docket of all <del>those</del> <ins>personal representatives</ins> who are liable to make
1600 returns and, immediately after the ceasing of the January term or as soon thereafter as the
1601 court deems practical in each year, to cite all defaulters to show cause for their neglect. A
1602 willful and continued failure to make a return shall be good cause for removal."
1603 SECTION 64.
1604 Said title is further amended by revising paragraphs (10) and (14) of and by adding a new
1605 paragraph to Code Section 53-12-2, relating to definitions regarding trusts, to read as
1606 follows:
1607 <ins>"(2.1)(A) 'Donor' means a person, including a testator, who contributes property to the
</ins> 1608 <ins>trust, provided that:
</ins> 1609 <ins>(i) If another person makes a transfer of property to the trust, other than as a bona
</ins> 1610 <ins>fide sale for an adequate and full consideration in money or money's worth, for
</ins> 1611 <ins>purposes of Sections 2036 through 2038 of the federal Internal Revenue Code, or if
</ins> 1612 <ins>the value of the property held in the trust is included in the gross estate of another
</ins>
1613 <ins>person under Chapter 11 of the federal Internal Revenue Code, then such other person
</ins> 1614 <ins>shall be the donor; and
</ins> 1615 <ins>(ii) Notwithstanding division (i) of this subparagraph, if a person has the power to
</ins> 1616 <ins>revoke the trust, such term means the person who has the power to revoke the trust.
</ins> 1617 <ins>(B) If a trust has more than one donor, each such person is the donor of the portion of
</ins> 1618 <ins>the trust attributable to the property of which such person is the donor."
</ins> 1619 "(10)(A) 'Qualified beneficiary' means a living individual or other existing person who,
1620 on the date of determination of beneficiary status:
1621 <del>(A)(i)</del> Is a distributee or permissible distributee of trust income or principal;
1622 <del>(B)(ii)</del> Would be a distributee or permissible distributee of trust income or principal
1623 if the interests of the distributees described in <del>subparagraph (A) of this paragraph
</del> 1624 <ins>division (i) of this subparagraph</ins> terminated on that date without causing the trust to
1625 terminate; or
1626 <ins>(C)(iii)</ins> Would be a distributee or permissible distributee of trust income or principal
1627 if the trust terminated on that date.
1628 <ins>(B)</ins> <del>The Attorney General has the rights of a qualified beneficiary with respect to a
</del> 1629 <del>charitable trust as defined in Code Section 53-12-170, and a</del> <ins>With respect to a charitable
</ins> 1630 <ins>trust as defined in Code Section 53-12-170, the Attorney General has the rights of a
</ins> 1631 <ins>qualified beneficiary. With respect to any trust, including, but not limited to, a
</ins> 1632 <ins>charitable trust, a charitable organization that is expressly designated as a distributee
</ins> 1633 <ins>or permissible distributee of trust income or principal has the rights of a qualified
</ins> 1634 <ins>beneficiary if, on the date of determination, such charitable organization is described
</ins> 1635 <ins>in division (i), (ii), or (iii) of subparagraph (A) of this paragraph. With respect to a trust
</ins> 1636 <ins>that is not a charitable trust and designates a class of unascertainable charitable
</ins> 1637 <ins>beneficiaries as distributees or permissible distributees of trust income or principal, the
</ins> 1638 <ins>Attorney General has the rights of a qualified beneficiary if, on the date of
</ins> 1639 <ins>determination, such unascertainable charitable beneficiaries are described in division
</ins>
1640 <ins>(i), (ii), or (iii) of subparagraph (A) of this paragraph. A</ins> person appointed to enforce
1641 a trust created for the care of an animal under Code Section 53-12-28 also has the rights
1642 of a qualified beneficiary."
1643 "(14) 'Trust instrument' means <del>the document, including any testamentary instrument,</del> <ins>an
</ins> 1644 <ins>instrument</ins> that contains the trust provisions. <ins>The trust instrument includes any trust
</ins> 1645 <ins>provisions established, determined, or amended by a trustee or other person in accordance
</ins> 1646 <ins>with the provisions of the trust, a court order, a nonjudicial settlement agreement under
</ins> 1647 <ins>Code Section 53-12-9, or other applicable law."
</ins> 1648 SECTION 65.
1649 Said title is further amended by revising Code Section 53-12-3, relating to survival of
1650 common law and equity, as follows:
1651 "53-12-3.
1652 Except to the extent that the principles of common law and equity governing trusts are
1653 modified by this chapter or another provision of law, those principles remain the law of this
1654 state. <ins>Without limitation:
</ins> 1655 <ins>(1) No provision of this chapter shall be construed to imply that any other Code section
</ins> 1656 <ins>or the common law did not, prior to the enactment of such provision, impose, permit, or
</ins> 1657 <ins>otherwise address a duty, power, relationship, or any other matter governed by such
</ins> 1658 <ins>provision; and
</ins> 1659 <ins>(2) The failure of the General Assembly to codify an established principle of common
</ins> 1660 <ins>law or equity governing trusts shall not be construed as evidence that the General
</ins> 1661 <ins>Assembly intended to reject that principle unless this chapter or another provision of law
</ins> 1662 <ins>is inconsistent with that principle or there is other evidence the General Assembly
</ins> 1663 <ins>intended that such principle should no longer apply."
</ins>
1664 SECTION 66.
1665 Said title is further amended by revising subsections (d), (h), and (k) of and by adding a new
1666 subsection to Code Section 53-12-8, relating to notice to person permitted to bind another
1667 person, consent on behalf of another person, and representation of others, to read as follows:
1668 "(d) <ins>Notwithstanding any other provision of this Code section, a donor</ins> <del>A settlor</del> may not
1669 represent and bind a beneficiary under this Code section with respect to the termination or
1670 modification of a trust under Article 4 of this chapter."
1671 "(h) A person who <del>on the date of determination would be eligible to receive distributions
</del> 1672 <del>of income or principal from the trust upon the termination of the interests of all persons
</del> 1673 <del>then currently eligible to receive distributions of income or principal</del> <ins>is a qualified
</ins> 1674 <ins>beneficiary under division (10)(A)(iii) of Code Section 53-12-2</ins> may represent and bind
1675 contingent successor beneficiaries with respect to matters in which there is no conflict of
1676 interest between the representative and the persons represented with respect to a particular
1677 question or dispute."
1678 "(k) Any person whose interests would be affected <ins>or who reasonably claims to represent
</ins> 1679 <ins>or bind a person whose interests would be affected</ins> may request that the court determine
1680 whether an interest is represented under this Code section or whether the representation is
1681 adequate. If the court determines that an interest is not represented under this Code section,
1682 or that the otherwise available representation might be inadequate, the court may appoint
1683 a representative to receive notice, give consent, and otherwise represent, bind, and act on
1684 behalf of a minor, incapacitated, or unborn individual, or a person whose identity or
1685 location is unknown and not reasonably ascertainable. A representative may be appointed
1686 to represent several persons or interests. A representative may act on behalf of the
1687 individual represented with respect to any matter arising under this chapter, regardless of
1688 whether a judicial proceeding concerning the trust is pending. In making decisions, a
1689 representative may consider the general benefit accruing to the living members of the
1690 individual's family."
1691 <ins>"(m) Representation under this Code section is effective for purposes of this chapter, the
</ins> 1692 <ins>trust provisions, or any matter involving a trust."
</ins> 1693 SECTION 67.
1694 Said title is further amended by revising Code Section 53-12-9, relating to binding
1695 nonjudicial settlement agreement, as follows:
1696 "53-12-9.
1697 (a) Except as provided in subsection (b) of this Code section, the trustee, any trust director,
1698 and all other persons whose interests would be affected may enter into a binding
1699 nonjudicial settlement agreement with respect to any matter involving the trust.
1700 (b) A nonjudicial settlement agreement:
1701 (1) Shall be valid only to the extent it does not violate a material purpose of the trust and
1702 includes terms and conditions that could be properly approved by the court under this
1703 <del>Code section</del> <ins>chapter</ins> or other applicable law; and
1704 (2) <ins>During the settlor's lifetime, shall</ins> <del>Shall</del> not be valid with respect to any modification
1705 or termination of an irrevocable trust when <del>the settlor's consent would be required in a
</del> 1706 <del>proceeding to approve</del> such modification or termination <ins>could be properly approved by
</ins> 1707 <ins>the court only in a proceeding</ins> under subsection (b) of Code Section 53-12-61.
1708 (c) The trustee, trust director, and any person whose interests would be affected by a
1709 nonjudicial settlement agreement may request that the court approve such agreement,
1710 determine whether the representation as provided in Code Section 53-12-8 was adequate,
1711 determine whether such agreement violates a material purpose of the trust, determine
1712 whether such agreement contains terms and conditions the court could have properly
1713 approved, or make any other similar determination.
1714 (d) A nonjudicial settlement agreement entered into in accordance with this Code section
1715 shall be final and binding on all parties to such agreement, including <del>individuals not sui
</del> 1716 <del>juris, unborn beneficiaries, and persons unknown</del> <ins>parties</ins> who are represented by a person
1717 who may represent and bind such parties under Code Section 53-12-8, as if ordered by a
1718 court with competent jurisdiction over the trust, the trust property, and the parties.
1719 (e) Entering into or petitioning a court regarding a nonjudicial settlement agreement under
1720 this Code section shall not constitute a violation of a condition in terrorem under Code
1721 Section <del>53-12-22</del> <ins>53-12-29."
</ins> 1722 SECTION 68.
1723 Said title is further amended by revising Code Section 53-12-22, relating to trust purposes
1724 and conditions in terrorem, as follows:
1725 "53-12-22.
1726 <del>(a)</del> A trust may be created for any lawful purpose.
1727 <del>(b) A condition in terrorem shall be void unless there is a direction in the trust instrument
</del> 1728 <del>as to the disposition of the property if the condition in terrorem is violated, in which event
</del> 1729 <del>the direction in the trust instrument shall be carried out, except as otherwise provided in
</del> 1730 <del>subsection (c) of this Code section.
</del> 1731 <del>(c) A condition in terrorem shall not be enforceable against an individual for:
</del> 1732 <del>(1) Bringing an action for interpretation or enforcement of a trust instrument;
</del> 1733 <del>(2) Bringing an action for an accounting, for removal, or for other relief against a trustee;
</del> 1734 <del>or
</del> 1735 <del>(3) Entering into a settlement agreement."
</del> 1736 SECTION 69.
1737 Said title is further amended by adding a new Code section to Article 2 of Chapter 12,
1738 relating to creation and validity of express trusts, to read as follows:
1739 <ins>"53-12-29.
</ins> 1740 <ins>A condition in terrorem shall be void unless there is a direction in the trust instrument as
</ins> 1741 <ins>to the disposition of the property if the condition in terrorem is violated, in which event the
</ins>
1742 <ins>direction in the trust instrument shall be carried out, except that a condition in terrorem
</ins> 1743 <ins>shall not be enforceable against an individual for:
</ins> 1744 <ins>(1) Bringing an action for interpretation or enforcement of a trust instrument;
</ins> 1745 <ins>(2) Bringing an action for an accounting, for removal, or for other relief against a trustee;
</ins> 1746 <ins>or
</ins> 1747 <ins>(3) Entering into a settlement agreement."
</ins> 1748 SECTION 70.
1749 Said title is further amended by adding a new Code section to Article 3 of Chapter 12,
1750 relating to revocable trusts, to read as follows:
1751 <ins>"53-12-46.
</ins> 1752 <ins>(a)(1) Notwithstanding any other provision of this chapter, if the settlor reserved a power
</ins> 1753 <ins>of revocation over a trust, the settlor is alive, and the power of revocation has not been
</ins> 1754 <ins>released:
</ins> 1755 <ins>(A) The duties of the trustee are owed exclusively to the settlor; and
</ins> 1756 <ins>(B) With respect to any trust property held for personal use or enjoyment by a
</ins> 1757 <ins>beneficiary or any other trust property designated as being subject to this paragraph
</ins> 1758 <ins>pursuant to paragraph (3) of subsection (c) of this Code section:
</ins> 1759 <ins>(i) The settlor shall have the power to direct the trustee in the management of such
</ins> 1760 <ins>property and the provisions of Article 18 of this chapter shall apply so that the trustee
</ins> 1761 <ins>is a directed trustee who, without limitation, is relieved from the duties from which
</ins> 1762 <ins>trustees are relieved under subsection (f) of Code Section 53-12-504; and
</ins> 1763 <ins>(ii) The trustee shall not have any duty to account at least annually to the
</ins> 1764 <ins>beneficiaries under paragraph (1) of subsection (b) of Code Section 53-12-243, to
</ins> 1765 <ins>keep the beneficiaries reasonably informed of the trust and its administration under
</ins> 1766 <ins>the common law, or to provide information to the trust director under paragraph (1)
</ins> 1767 <ins>of subsection (c) of Code Section 53-12-504.
</ins>
1768 <ins>(2) Unless the trust instrument provides otherwise, if the trustee is required or authorized
</ins> 1769 <ins>in the trustee's discretion to make distributions of trust property to other beneficiaries
</ins> 1770 <ins>while the settlor is alive, the settlor has not released the power to revoke the trust, and the
</ins> 1771 <ins>settlor lacks capacity to revoke the trust, then the trustee owes duties to the beneficiaries
</ins> 1772 <ins>to whom income or principal is required or authorized in the trustee's discretion to be
</ins> 1773 <ins>distributed currently and the office of trust director created pursuant to this subsection is
</ins> 1774 <ins>governed by Code Section 53-12-506.
</ins> 1775 <ins>(b) If subsection (a) of this Code section applies to a trust:
</ins> 1776 <ins>(1) In addition to any persons who may seek to enforce the trust under any other Code
</ins> 1777 <ins>section or the common law, the following persons may seek to enforce the trust:
</ins> 1778 <ins>(A) The settlor's guardian or conservator;
</ins> 1779 <ins>(B) The settlor's agent under a power of attorney granting general authority with
</ins> 1780 <ins>respect to estates, trusts, and other beneficial interests under Code Section 10-6B-50,
</ins> 1781 <ins>general authority with respect to claims and litigation under Code Section 10-6B-51,
</ins> 1782 <ins>or substantially similar authority that would make it appropriate for the agent to enforce
</ins> 1783 <ins>the trustee's duties to the settlor;
</ins> 1784 <ins>(C) The settlor's parent, spouse, or descendant; or
</ins> 1785 <ins>(D) Any qualified beneficiary of the trust;
</ins> 1786 <ins>(2) Upon a motion by the settlor, the court shall dismiss any action seeking to enforce
</ins> 1787 <ins>the trust unless the court finds that the settlor lacks capacity to revoke the trust; and
</ins> 1788 <ins>(3) Upon a motion by a person described in subparagraph (A) or (B) of paragraph (1) of
</ins> 1789 <ins>this subsection, the court shall dismiss any action seeking to enforce the trust filed by a
</ins> 1790 <ins>person described in subparagraph (C) or (D) of paragraph (1) of this subsection, unless
</ins> 1791 <ins>the court finds that the settlor's interests in the trust are not adequately represented by the
</ins> 1792 <ins>person moving to dismiss the action.
</ins> 1793 <ins>(c) For purposes of this Code section:
</ins>
1794 <ins>(1) 'Property held for personal use or enjoyment' means property held for purposes other
</ins> 1795 <ins>than, or in addition to, monetary value, and shall include, but not be limited to:
</ins> 1796 <ins>(A) All personal effects, including, but not limited to, clothing, jewelry, firearms, and
</ins> 1797 <ins>equipment;
</ins> 1798 <ins>(B) All household goods and equipment, including, but not limited to, furniture and
</ins> 1799 <ins>furnishings, works of art, and collectibles;
</ins> 1800 <ins>(C) All automobiles, aircraft, watercraft, and other vehicles; and
</ins> 1801 <ins>(D) All dwellings and other real property that are used or enjoyed by a beneficiary,
</ins> 1802 <ins>regardless of whether rented, leased, or otherwise held out for use or enjoyment by
</ins> 1803 <ins>other persons.
</ins> 1804 <ins>(2) If trust property includes an indirect interest in property, including, but not limited
</ins> 1805 <ins>to, an interest in an entity, the entire indirect interest is held for personal use or enjoyment
</ins> 1806 <ins>if any portion of the property in which the trustee holds an indirect interest is held for
</ins> 1807 <ins>personal use or enjoyment.
</ins> 1808 <ins>(3)(A) The trust instrument, or a majority of the persons to whom the trustee owes
</ins> 1809 <ins>duties under subsection (a) of this Code section in a writing delivered to the trustee,
</ins> 1810 <ins>may designate trust property as:
</ins> 1811 <ins>(i) Being held or not being held for personal use or enjoyment; or
</ins> 1812 <ins>(ii) Property subject to or not subject to subparagraph (a)(1)(B) of this Code section.
</ins> 1813 <ins>(B) A designation of trust property made pursuant to subparagraph (A) of this
</ins> 1814 <ins>paragraph shall control; provided, however, that a failure to make a designation of trust
</ins> 1815 <ins>property pursuant to subparagraph (A) of this paragraph shall not constitute evidence
</ins> 1816 <ins>that such property is not held for personal use or enjoyment.
</ins> 1817 <ins>(4) 'Management' of property means the exercise of all powers over such property that
</ins> 1818 <ins>an unmarried competent owner has over individually owned property."
</ins>
1819 SECTION 71.
1820 Said title is further amended by revising subsections (b), (c), and (k) of and by adding a new
1821 subsection to Code Section 53-12-61, relating to power to direct modification or termination,
1822 petition to modify or terminate irrevocable trust, proceeding to approve proposed
1823 modification or termination, distribution of trust property under order for termination, and
1824 waiver of notice, to read as follows:
1825 "(b) During the settlor's lifetime, the court shall approve a petition to modify or terminate
1826 an irrevocable trust, even if the modification or termination is inconsistent with a material
1827 purpose of the trust, if the settlor and all qualified beneficiaries consent to such
1828 modification or termination and the trustee has <del>received</del> <ins>been given</ins> notice of the proposed
1829 modification or termination. A settlor's power to consent to such trust's modification or
1830 termination may be exercised by:
1831 (1) An agent under a power of attorney only to the extent expressly authorized by the
1832 power of attorney and the provisions of the trust;
1833 (2) The settlor's conservator with the approval of the court supervising the
1834 conservatorship if an agent is not so authorized; or
1835 (3) The settlor's guardian with the approval of the court supervising the guardianship if
1836 an agent is not so authorized and a conservator has not been appointed.
1837 (c) Following the settlor's death the court shall approve a petition to:
1838 (1) Modify an irrevocable trust if all qualified beneficiaries consent, the trustee has
1839 <del>received</del> <ins>been given</ins> notice of the proposed modification, and the court concludes that
1840 modification is not inconsistent with any material purpose of such trust; and
1841 (2) Terminate an irrevocable trust if all qualified beneficiaries consent, the trustee has
1842 <del>received</del> <ins>been given</ins> notice of the proposed termination, and the court concludes that
1843 continuance of such trust is not necessary to achieve any material purpose of such trust."
1844 "(k) Subsections (b) and (c) of this Code section shall not apply to charitable trusts. <ins>If a
</ins> 1845 <ins>transfer to any other trust qualified for a charitable deduction under Sections 170(a),
</ins>
1846 <ins>2055(a), or 2522(a) of the federal Internal Revenue Code, the trust may not be modified
</ins> 1847 <ins>or terminated pursuant to subsection (b) or (c) of this Code section in a manner that
</ins> 1848 <ins>prevents the transfer to the trust from qualifying for or reduces the amount of such
</ins> 1849 <ins>charitable deduction."
</ins> 1850 <ins>"(o) For purposes of subsection (b) of this Code section, notwithstanding the provisions
</ins> 1851 <ins>of Code Section 53-12-8, all qualified beneficiaries shall represent and bind all other
</ins> 1852 <ins>beneficiaries who are not qualified beneficiaries, regardless of whether there is a conflict
</ins> 1853 <ins>of interest between a qualified beneficiary and any such other beneficiary or whether any
</ins> 1854 <ins>such other beneficiary objects to the representation."
</ins> 1855 SECTION 72.
1856 Said title is further amended by revising Code Section 53-12-62, relating to power of trustee
1857 to invade principal of original trust, as follows:
1858 "53-12-62.
1859 (a) As used in this Code section, the term:
1860 (1) 'Original trust' refers to the trust from which principal is being distributed.
1861 (2) 'Second trust' refers to the trust to which assets are being distributed from the original
1862 trust, whether a separate trust or an amended version of the original trust.
1863 (b)(1) As used in this subsection, the term 'current beneficiary' means a person who, on
1864 the date of distribution to the second trust, is a distributee or permissible distributee of
1865 trust income or principal.
1866 (2) Unless the original trust instrument expressly provides otherwise, a trustee, other than
1867 a <del>person who contributed property</del> <ins>donor</ins> to the trust, with <ins>the discretionary</ins> authority to
1868 <del>invade the</del> <ins>distribute income or</ins> principal of the original trust to make distributions to or
1869 for the benefit of one or more of the beneficiaries may also, independently or with court
1870 approval, exercise such authority by distributing all or part of the <ins>income or</ins> principal of
1871 the original trust <ins>subject to such discretion</ins> to a trustee of a second trust; provided,
1872 however, that the second trust shall not include as a:
1873 (A) Current beneficiary any person that is not a current beneficiary of income or
1874 principal of the original trust; or
1875 (B) Beneficiary any person that is not a beneficiary of the original trust.
1876 (c) Except as provided in this Code section, a trustee may exercise the power to <del>invade the
</del> 1877 <ins>distribute income or</ins> principal of the original trust under subsection (b) of this Code section
1878 without the consent of the settlor or the beneficiaries of the original trust if such trustee
1879 provides written notice of such trustee's decision to exercise the power to such settlor, if
1880 living, any trust director, and those persons then entitled to annual reports from the trustee
1881 of the original trust under subsection (b) of Code Section 53-12-243, taking into account
1882 the provisions of the original trust and subsections (c) and (d) of Code Section 53-12-243.
1883 Such notice shall:
1884 (1) Describe the manner in which such trustee intends to exercise such power;
1885 (2) Specify the date such trustee proposes to distribute to the second trust; and
1886 (3) Be delivered at least 30 days before the proposed distribution to the second trust.
1887 (d) The exercise of the power to <del>invade the</del> <ins>distribute income or</ins> principal of the original
1888 trust under subsection (b) of this Code section shall be by an instrument in a writing, signed
1889 and acknowledged by the trustee, and filed with the records of the original trust.
1890 (e) The exercise of the power to <del>invade the</del> <ins>distribute income or</ins> principal of the original
1891 trust under subsection (b) of this Code section shall not extend the permissible period of
1892 the rule against perpetuities that applies to such original trust.
1893 (f) The exercise of the power to <del>invade the</del> <ins>distribute income or</ins> principal of the original
1894 trust under subsection (b) of this Code section by a trustee who is also a beneficiary shall
1895 be subject to the limitations of Code Section 53-12-270.
1896 (g) This Code section shall not be construed to abridge the right of any trustee who has a
1897 power <del>of invasion</del> to distribute <del>property</del> <ins>income or principal</ins> in further trust that arises
1898 under any other law or under common law, and nothing in this Code section shall be
1899 construed to imply that the common law does not permit the exercise of a power to <del>invade
</del> 1900 <del>the</del> <ins>distribute income or</ins> principal of a trust in the manner authorized under subsection (b)
1901 of this Code section.
1902 (h) A second trust may confer a power of appointment upon a beneficiary of the original
1903 trust to whom or for the benefit of whom the trustee has the power to distribute <del>the</del> <ins>income
</ins> 1904 <ins>or</ins> principal of such original trust. For purposes of this subsection, the permissible
1905 appointees of the power of appointment conferred upon a beneficiary may include persons
1906 who are not beneficiaries of such original trust or second trust.
1907 (i) If any contribution to the original trust qualified for the annual exclusion under Section
1908 2503(b) of the federal Internal Revenue Code, <del>as it existed on February 1, 2018,</del> the marital
1909 deduction under Section 2056(a) or 2523(a) of the federal Internal Revenue Code, <del>as it
</del> 1910 <del>existed on February 1, 2018,</del> or the charitable deduction under Section 170(a), <del>642(c),
</del> 1911 2055(a), or 2522(a) of the federal Internal Revenue Code, <del>as it existed on February 1, 2018,
</del> 1912 is a direct skip qualifying for treatment under Section 2642(c) of the federal Internal
1913 Revenue Code, <del>as it existed on February 1, 2018,</del> or qualified for any other specific tax
1914 benefit that would be lost by the existence of the authorized trustee's authority under
1915 subsection (b) of this Code section for income, gift, estate, or generation-skipping transfer
1916 tax purposes under the federal Internal Revenue Code, then the authorized trustee shall not
1917 have the power to distribute the income or principal of a trust pursuant to subsection (b) of
1918 this Code section in a manner that would prevent the contribution to the original trust from
1919 qualifying for such exclusion, deduction, or other tax benefit or would reduce such
1920 exclusion, deduction, or other tax benefit that was originally claimed with respect to such
1921 contribution.
1922 (j) The exercise of the power to <del>invade the</del> <ins>distribute income or</ins> principal of the original
1923 trust under subsection (b) of this Code section shall be subject to the following limitations
1924 <ins>with respect to any portion of the original trust or second trust that does or will qualify as
</ins> 1925 <ins>a grantor trust with respect to a donor:
</ins> 1926 (1) The second trust need not qualify as a grantor trust for federal income tax purposes,
1927 even if the original trust does qualify as a grantor trust, except that if such original trust
1928 qualifies as a grantor trust because of the application of Section 672(f)(2)(A) of the
1929 federal Internal Revenue Code, <del>as it existed on February 1, 2018,</del> such second trust may
1930 not include or omit a term that, if included in or omitted from the original trust
1931 instrument, would have prevented such original trust from qualifying under such section;
1932 <ins>(2) Notwithstanding any other provision of this Code section, when the original trust
</ins> 1933 <ins>does not qualify as a grantor trust and the donor is alive, the terms of the second trust
</ins> 1934 <ins>shall not provide for a power of disposition that is not exempt from the application of
</ins> 1935 <ins>subsection (a) of Section 674 of the federal Internal Revenue Code unless an adverse
</ins> 1936 <ins>party, as defined in subsection (a) of Section 672 of the federal Internal Revenue Code,
</ins> 1937 <ins>approves or consents to the inclusion of the power in the second trust. Subject to
</ins> 1938 <ins>paragraph (3) of this subsection, the second trust may qualify as a grantor trust pursuant
</ins> 1939 <ins>to other sections of the federal Internal Revenue Code;
</ins> 1940 <del>(2)(3)</del> Unless <del>the settlor</del> <ins>the donor</ins> objects in a writing delivered to the trustee before the
1941 date the trustee proposes to distribute from the original trust to the second trust, such
1942 second trust may qualify as a grantor trust for federal income tax purposes, even if such
1943 original trust does not so qualify, except that if such original trust does not so qualify and
1944 such second trust will so qualify, in whole or in part, with respect to the <del>settlor</del> <ins>donor,
</ins> 1945 such second trust shall grant such <del>settlor</del> donor or another person a power that would
1946 cause such second trust to cease to be a grantor trust for federal income tax purposes; and
1947 <del>(3)(4)</del> When both the original trust and the second trust qualify as grantor trusts for
1948 federal income tax purposes and such original trust grants the <del>settlor</del> <ins>donor</ins> or another
1949 person the power to cause such original trust to cease to be a grantor trust, such second
1950 trust shall grant an equivalent power to the <del>settlor</del> <ins>donor</ins> or another person unless such
1951 <del>settlor</del> <ins>donor</ins> objects in a writing delivered to the trustee before the date the trustee
1952 proposes to distribute from such original trust to such second trust.
1953 <ins>For purposes of this subsection, a trust that is a 'grantor trust' or that qualifies as a 'grantor
</ins> 1954 <ins>trust' shall mean a trust, or portion of a trust, of which the donor is treated as the owner of
</ins> 1955 <ins>the trust property for federal income tax purposes pursuant to Subchapter J of the federal
</ins> 1956 <ins>Internal Revenue Code.
</ins> 1957 (k) During any period when the original trust owns stock in a Subchapter 'S' corporation
1958 as defined in Section 1361(a)(1) of the federal Internal Revenue Code, <del>as it existed on
</del> 1959 <del>February 1, 2018,</del> an authorized trustee shall not exercise a power authorized by subsection
1960 (b) of this Code section to distribute part or all of the stock of the Subchapter 'S'
1961 corporation to a second trust that is not a permitted shareholder under Section 1361(c)(2)
1962 of the federal Internal Revenue Code, <del>as it existed on February 1, 2018.
</del> 1963 (l) A trustee or other person that reasonably relies on the validity of a distribution of
1964 property of the original trust to the second trust under subsection (b) of this Code section
1965 or any other law or common law shall not be liable for any action or failure to act as a
1966 result of such reliance.
1967 (m) This Code section shall not create or imply a duty for a trustee or trust director to
1968 exercise a power conferred by this Code section.
1969 (n) If exercise of the power to <del>invade the</del> <ins>distribute income or</ins> principal of the original trust
1970 would be effective under subsection (b) of this Code section except that the second trust
1971 in part does not comply with this Code section, such exercise of the power shall be
1972 effective, a provision in such second trust that is not permitted under this Code section shall
1973 be void to the extent necessary to comply with this Code section, and a provision required
1974 by this Code section to be in such second trust that is not contained in such second trust
1975 shall be deemed to be included in such second trust to the extent necessary to comply with
1976 this Code section.
1977 (o) The <del>settlor</del> <ins>donor</ins> of the original trust shall be deemed to be the <del>settlor</del> <ins>donor</ins> of the
1978 second trust with respect to the portion of the <ins>income or</ins> principal of the original trust
1979 subject to the exercise of the power to <del>invade</del> <ins>distribute</ins> the principal of such original trust
1980 under subsection (b) of this Code section. <ins>The settlor of the second trust shall be the
</ins> 1981 <ins>person who creates the second trust, including a testator in the case of a testamentary trust;
</ins> 1982 <ins>provided, however, that, if the trustee of the original trust creates the second trust, the
</ins> 1983 <ins>settlor of the original trust shall be deemed to be the settlor of the second trust.
</ins> 1984 (p) A debt, liability, or other obligation enforceable against property of the original trust
1985 shall be enforceable to the same extent against the property when held by the second trust
1986 after exercise of the power to <del>invade</del> <ins>distribute</ins> the <ins>income or</ins> principal of such original trust
1987 under subsection (b) of this Code section.
1988 (q) This Code section shall apply to any trust <del>the meaning and effect of whose trust
</del> 1989 <del>provisions are determined by the law of this state</del> <ins>that:
</ins> 1990 <ins>(1) Has its principal place of administration in this state, including a trust whose
</ins> 1991 <ins>principal place of administration has been changed to this state; or
</ins> 1992 <ins>(2) Provides in its trust instrument that it is governed by the law of this state or is
</ins> 1993 <ins>governed by the law of this state for the purpose of:
</ins> 1994 <ins>(A) Administration, including administration of a trust whose governing law for
</ins> 1995 <ins>purposes of administration has been changed to the law of this state;
</ins> 1996 <ins>(B) Construction of the terms of the trust; or
</ins> 1997 <ins>(C) Determining the meaning or effect of the terms of the trust.
</ins> 1998 (r) This Code section shall not apply to charitable trusts."
1999 SECTION 73.
2000 Said title is further amended by revising subsection (f) of Code Section 53-12-80, relating
2001 to spendthrift provisions, as follows:
2002 "(f) If a beneficiary is also a <del>contributor to the trust</del> <ins>donor,</ins> a spendthrift provision shall not
2003 be valid as to such beneficiary to the extent of the <del>proportion</del> <ins>portion</ins> of trust property
2004 <del>attributable to such beneficiary's contribution</del> <ins>of which such beneficiary is the donor.</ins> This
2005 subsection shall not apply to a special needs trust established pursuant to 42 U.S.C.
2006 <del>Sections</del> <ins>Section</ins> 1396p(d)(4)(A) or 1396p(d)(4)(C)."
2007 SECTION 74.
2008 Said title is further amended by revising Code Section 53-12-81, relating to limitations on
2009 creditors' rights to discretionary distributions, as follows:
2010 "53-12-81.
2011 A transferee or creditor of a beneficiary shall not compel the trustee or a trust director to
2012 pay any amount that is payable only in the discretion of the trustee or trust director
2013 regardless of whether the discretion is expressed in the form of a standard of distribution,
2014 including, but not limited to, health, education, maintenance, and support, and whether
2015 such trustee or trust director is also a beneficiary. This Code section shall not apply to the
2016 extent of the <del>proportion</del> <ins>portion</ins> of trust property <del>attributable to the beneficiary's
</del> 2017 <del>contribution</del> <ins>of which such beneficiary is the donor."
</ins> 2018 SECTION 75.
2019 Said title is further amended by revising Code Section 53-12-82, relating to rules for trusts
2020 and consideration of assets of an inter vivos marital trust following death, as follows:
2021 "53-12-82.
2022 (a)(1) As used in this subsection, the term 'creditor' means:
2023 (A) With respect to subparagraphs (A) and (B) of paragraph (2) of this subsection,
2024 those creditors of a <del>settlor</del> <ins>donor</ins> whose claims against the property of the trust are
2025 governed by this article, including those creditors identified in subsection (d) of Code
2026 Section 53-12-80; and
2027 (B) With respect to subparagraph (C) of paragraph (2) of this subsection, those
2028 claimants whose claims against the property of <del>the settlor's</del> <ins>a donor's</ins> estate are
2029 governed by Article 4 of Chapter 7 of this title, including those claimants identified in
2030 Code Section 53-7-40.
2031 (2) Regardless of whether the trust instrument contains a spendthrift provision, the
2032 following rules shall apply:
2033 (A) During the lifetime of the settlor, the <ins>settlor shall be treated as the donor of all
</ins> 2034 property of a <del>revocable</del> trust <ins>revocable by such settlor and such property</ins> shall be
2035 subject to claims of <del>the settlor's</del> <ins>such donor's</ins> creditors;
2036 (B) With respect to an irrevocable trust:
2037 (i) Creditors or assignees of the <del>settlor</del> <ins>donor</ins> may reach the maximum amount that
2038 can be distributed to or for the <del>settlor's</del> <ins>donor's</ins> benefit during the <del>settlor's</del> <ins>donor's</ins> life
2039 or that could have been distributed to or for the <del>settlor's</del> <ins>donor's</ins> benefit immediately
2040 prior to the <del>settlor's</del> <ins>donor's</ins> death, <del>provided that, if a trust has more than one settlor,
</del> 2041 <del>the amount the creditors or assignees of a particular settlor may reach shall not exceed
</del> 2042 <del>the settlor's interest in the portion of the trust attributable to that settlor's contribution;
</del> 2043 and
2044 (ii) The portion of a trust that can be distributed to or for the <del>settlor's</del> <ins>donor's</ins> benefit
2045 pursuant to the power of a trustee, whether arising under the trust instrument or any
2046 other law, to make a distribution to or for the benefit of a <del>settlor</del> <ins>donor</ins> for the purpose
2047 of reimbursing the <del>settlor</del> <ins>donor</ins> in an amount equal to any income taxes payable on
2048 any portion of the trust principal and income that is treated as the <del>settlor's</del> <ins>donor's
</ins> 2049 individual income under applicable law shall not be considered an amount that can
2050 be distributed to or for the <del>settlor's</del> <ins>donor's</ins> benefit during the <del>settlor's</del> <ins>donor's</ins> life or
2051 that could have been distributed to or for the settlor's <ins>donor's</ins> benefit immediately
2052 prior to the <del>settlor's</del> <ins>donor's</ins> death; and
2053 (C) After the death of a <del>settlor</del> <ins>donor,</ins> and subject to the <del>settlor's</del> <ins>donor's</ins> right to direct
2054 the source from which liabilities shall be paid:
2055 (i) The <ins>settlor shall be treated as the donor of all</ins> property of a trust that was
2056 revocable <ins>by the settlor</ins> at the settlor's death or had become irrevocable as a result of
2057 the settlor's incapacity, <ins>and such property</ins> shall be subject to claims of the creditors
2058 of the <del>settlor's</del> <ins>donor's</ins> estate to the extent the <del>settlor's</del> <ins>donor's</ins> probate estate is
2059 inadequate; and
2060 (ii) Payments that would not be subject to the claims of the creditors of the <del>settlor's
</del> 2061 <ins>donor's</ins> estate if made by way of beneficiary designation to persons other than the
2062 <del>settlor's</del> <ins>donor's</ins> estate shall not be made subject to such claims by virtue of this Code
2063 section unless otherwise provided in the trust instrument.
2064 (b)(1) As used in this subsection, the term:
2065 <ins>(A) 'Donor's spouse' means the spouse of the donor at the time of the creation of an
</ins> 2066 <ins>inter vivos marital trust, regardless of whether such spouse is married to the donor at
</ins> 2067 <ins>the time of such spouse's death.
</ins> 2068 <del>(A)(B)</del> 'Inter vivos marital trust' means:
2069 (i) A trust described in Section 2523(e) of the Internal Revenue Code of 1986, <del>as it
</del> 2070 <del>existed on February 1, 2018;
</del> 2071 (ii) A trust for which the election described in Section 2523(f) of the Internal
2072 Revenue Code of 1986, <del>as it existed on February 1, 2018,</del> has been made; or
2073 (iii) Another trust to the extent such trust's <del>assets are</del> <ins>property is</ins> attributable to a trust
2074 described in division (i) or (ii) of this subparagraph.
2075 <del>(B) 'Settlor's spouse' means the spouse of the settlor at the time of the creation of an
</del> 2076 <del>inter vivos marital trust, regardless of whether such spouse is married to the settlor at
</del> 2077 <del>the time of such spouse's death.
</del> 2078 (2) Subject to Article 4 of Chapter 2 of Title 18, after the death of the <del>settlor's</del> <ins>donor's
</ins> 2079 spouse, the <del>assets</del> <ins>property</ins> of an inter vivos marital trust shall be deemed to have been
2080 contributed by the <del>settlor's</del> <ins>donor's</ins> spouse and not by the <del>settlor</del> <ins>donor so that the spouse
</ins> 2081 <ins>becomes the donor of all such property; provided, however, that this Code section shall
</ins> 2082 <ins>not apply to any property contributed to such trust after the death of the donor's spouse."
</ins> 2083 SECTION 76.
2084 Said title is further amended by revising Code Section 53-12-83, relating to creditors' claims
2085 against property that is subject to withdrawal right, as follows:
2086 "53-12-83.
2087 <ins>For purposes of this article, the</ins> <del>The</del> holder of a power of withdrawal, during the period that
2088 the power may be exercised, shall be treated in the same manner as the settlor of a
2089 revocable trust to the extent of the property subject to the power. <del>The,</del> <ins>and the</ins> lapse,
2090 release, or waiver of a power of withdrawal shall not cause the holder to be treated as a
2091 <del>settlor</del> <ins>donor</ins> of the trust."
2092 SECTION 77.
2093 Said title is further amended by revising Code Section 53-12-172, relating to cy pres, as
2094 follows:
2095 "53-12-172.
2096 If a charitable <del>trust or gift cannot be executed in the manner provided by the settlor or
</del> 2097 <del>donor</del> <ins>purpose of a charitable trust becomes unlawful, impracticable, impossible to achieve,
</ins> 2098 <ins>or wasteful,</ins> the <del>superior</del> court shall, <ins>upon a petition by a donor or other interested person
</ins> 2099 <ins>pursuant to this Code section, modify or terminate the trust</ins> <del>exercise equitable powers</del> in
2100 such a way as will as nearly as possible effectuate the intention of the settlor or donor."
2101 SECTION 78.
2102 Said title is further amended by revising Code Section 53-12-200, relating to capacity of
2103 trustee, as follows:
2104 "53-12-200.
2105 A trustee shall have legal capacity under Georgia law to acquire, hold, and transfer title to
2106 property. An individual shall be eligible to serve as a trustee regardless of citizenship or
2107 residency. If the trustee is a corporation, partnership, or other entity, it shall be required
2108 to have the power to act as a trustee in Georgia <ins>pursuant to Code Section 7-1-242, Article
</ins> 2109 <ins>15 of this chapter, or other applicable law."
</ins> 2110 SECTION 79.
2111 Said title is further amended by revising Code Section 53-12-201, relating to appointment
2112 and vacancies, as follows:
2113 "53-12-201.
2114 (a) A settlor may appoint trustees or grant that power to others, including trust
2115 beneficiaries.
2116 (b) A trust shall never fail for want of a trustee.
2117 (c) <del>If the trust instrument names a person to fill a vacancy or provides a method of
</del> 2118 <del>appointing a trustee, any vacancy shall be filled or appointment made as provided in the
</del> 2119 <del>trust instrument.</del> <ins>A vacancy in a trusteeship occurs if:
</ins> 2120 <ins>(1) A person designated as trustee rejects the trusteeship;
</ins> 2121 <ins>(2) A person designated as trustee cannot be identified, cannot be located, or does not
</ins> 2122 <ins>exist;
</ins> 2123 <ins>(3) A guardian or conservator is appointed for an individual serving as trustee;
</ins> 2124 <ins>(4) A trustee is disqualified or removed;
</ins> 2125 <ins>(5) A trustee resigns or dies; or
</ins> 2126 <ins>(6) For any other reason there is no person currently serving as trustee of a trust.
</ins> 2127 (d) <del>The qualified beneficiaries may appoint a trustee by unanimous consent.</del> <ins>Unless
</ins> 2128 <ins>otherwise provided in the trust instrument, if one or more cotrustees remain in office, a
</ins> 2129 <ins>vacancy need not be filled.
</ins>
2130 (e) <del>In all other cases, the court, on petition of an interested person, may appoint any
</del> 2131 <del>number of trustees consistent with the intention of the settlor and the interests of the
</del> 2132 <del>beneficiaries.</del> <ins>A vacancy in a trusteeship that is required to be filled shall be filled, in the
</ins> 2133 <ins>following order of priority, by a person:
</ins> 2134 <ins>(1) Designated in the trust instrument as successor trustee;
</ins> 2135 <ins>(2) Appointed as provided in the trust instrument;
</ins> 2136 <ins>(3) Appointed by the unanimous agreement of the qualified beneficiaries; or
</ins> 2137 <ins>(4) On petition of an interested person, appointed by the court.
</ins> 2138 <ins>(f) Regardless of whether a vacancy in a trusteeship exists or is required to be filled, the
</ins> 2139 <ins>court may, on petition of an interested person, appoint an additional trustee or special
</ins> 2140 <ins>fiduciary whenever the court considers the appointment consistent with the intention of the
</ins> 2141 <ins>settlor and the interests of the beneficiaries, or otherwise necessary for the administration
</ins> 2142 <ins>of the trust.
</ins> 2143 <ins>(f)(g) A</ins> <del>The</del> petition provided for in <del>subsection (e) of</del> this Code section shall be served
2144 upon all qualified beneficiaries.
2145 <del>(g)(h)</del> A trustee appointed as a successor trustee shall have all the authority of the original
2146 trustee."
2147 SECTION 80.
2148 Said title is further amended by revising Code Section 53-12-221, relating to removal of
2149 trustee, as follows:
2150 "53-12-221.
2151 (a) A trustee may be removed:
2152 (1) In accordance with the provisions of the trust instrument; or
2153 (2) Upon petition to the court by any interested person showing good cause <ins>or by the
</ins> 2154 <ins>court on its own motion.
</ins> 2155 (b) <ins>The court may remove a trustee if:
</ins>
2156 <ins>(1) The trustee has committed a serious breach of trust;
</ins> 2157 <ins>(2) Lack of cooperation among cotrustees substantially impairs the administration of the
</ins> 2158 <ins>trust;
</ins> 2159 <ins>(3) The court finds that removal of the trustee best serves the interests of the
</ins> 2160 <ins>beneficiaries because of unfitness (including, but not limited to, a lack of capacity to
</ins> 2161 <ins>make or communicate significant responsible decisions concerning the management of
</ins> 2162 <ins>trust property) or unwillingness or persistent failure to administer the trust effectively;
</ins> 2163 <ins>(4) There has been a substantial change of circumstances, the court finds that removal
</ins> 2164 <ins>of the trustee best serves the interests of the beneficiaries and is not inconsistent with a
</ins> 2165 <ins>material purpose of the trust, and a suitable cotrustee or successor trustee is available; or
</ins> 2166 <ins>(5) Removal is requested by all of the qualified beneficiaries, the court finds that removal
</ins> 2167 <ins>of the trustee best serves the interests of the beneficiaries and is not inconsistent with a
</ins> 2168 <ins>material purpose of the trust, and a suitable cotrustee or successor trustee is available.
</ins> 2169 <ins>(c)</ins> In the discretion of the court, in order to protect the trust property or the interests of any
2170 beneficiary, on its own motion or on motion of a cotrustee or other interested person, the
2171 court may compel the trustee whose removal is being sought to surrender trust property to
2172 a cotrustee, a receiver, or temporary trustee pending a decision on a petition for removal
2173 of a trustee or pending appellate review of such decision. To the extent the court deems
2174 necessary, the powers of the trustee also may be suspended."
2175 SECTION 81.
2176 Said title is further amended by revising subsections (b) and (c) of Code Section 53-12-243,
2177 relating to duty to provide reports and accounts, as follows:
2178 "(b)(1) A trustee shall account at least annually, at the termination of the trust, and upon
2179 a change of trustees to each beneficiary of an irrevocable trust to whom income <ins>or
</ins> 2180 <ins>principal</ins> is required or authorized in the trustee's discretion to be distributed <del>currently
</del> 2181 <ins>during the period covered by the report, including upon the termination of the trust on the
</ins>
2182 <ins>last day of such period,</ins> and to any person who may revoke the trust. <del>At the termination
</del> 2183 <del>of the trust, the trustee shall also account to each remainder beneficiary.</del> Upon a change
2184 of trustees, the trustee shall also account to the successor trustee.
2185 (2) An accounting furnished to a beneficiary pursuant to paragraph (1) of this subsection
2186 shall contain a statement of receipts and disbursements of principal and income that have
2187 occurred during the last complete fiscal year of the trust or since the last accounting to
2188 that beneficiary and a statement of the assets and liabilities of the trust as of the end of
2189 the accounting period.
2190 (c) A trustee shall not be required to report information or account to:
2191 <ins>(1) A</ins> <del>a</del> beneficiary who has waived in writing the right to a report or accounting and has
2192 not withdrawn that waiver; <ins>or
</ins> 2193 <ins>(2) The unascertainable charitable beneficiaries of a trust that is not a charitable trust."
</ins> 2194 SECTION 82.
2195 Said title is further amended in Part 1 of Article 13 of Chapter 12, relating to duties of
2196 trustee, by adding a new Code section to read as follows:
2197 <ins>"53-12-248.
</ins> 2198 <ins>When a person holds a power of appointment, as defined in Code Section 53-12-500, over
</ins> 2199 <ins>property with respect to which the person is also a trustee or a trust director, the duties
</ins> 2200 <ins>imposed on such person as a trustee or trust director shall not apply to the exercise or
</ins> 2201 <ins>nonexercise of the power of appointment."
</ins> 2202 SECTION 83.
2203 Said title is further amended by revising paragraphs (11), (23), (28), and (29) of and by
2204 adding a new paragraph to subsection (b) of Code Section 53-12-261, relating to powers of
2205 trustee and limitation based on fiduciary duties, to read as follows:
2206 "(11) To borrow money for such periods of time and upon such terms and conditions as
2207 to rates, maturities, renewals, and security as the fiduciary shall deem advisable for <del>the
</del> 2208 <ins>any</ins> purpose <del>of paying debts, taxes, or other charges against the estate or trust or any part
</del> 2209 <del>thereof</del> and to mortgage, pledge, or otherwise encumber such portion of the property held
2210 by the fiduciary as may be required to secure the loan and to renew existing loans either
2211 as maker or endorser;"
2212 "(23) To employ and compensate, out of income or principal or both and in such
2213 proportion as the fiduciary shall deem advisable, persons deemed by the fiduciary needful
2214 to advise or assist in the administration of the estate or trust, including, but not limited to,
2215 agents, accountants, brokers, attorneys at law, attorneys in fact, investment brokers, rental
2216 agents, realtors, appraisers, and tax specialists; and to do so without liability for any
2217 neglect, omission, misconduct, or default of any such agent or representative selected and
2218 retained with due care on the part of the fiduciary; <del>provided, however, that, if an attorney
</del> 2219 <del>in fact is appointed by a power of attorney to which Chapter 6B of Title 10 is applicable
</del> 2220 <del>under Code Section 10-6B-81, the exercise of the fiduciary powers of the trustee by the
</del> 2221 <del>attorney in fact shall be subject to Code Section 10-6B-40;"
</del> 2222 "(28) To determine:
2223 (A) What is principal and what is income of any estate or trust and to allocate or
2224 apportion receipts and expenses, as between principal and income, in the exercise of the
2225 fiduciary's discretion and, by way of illustration and not limitation of the fiduciary's
2226 discretion, to charge premiums on securities purchased at a premium against principal
2227 or income or partly against each;
2228 (B) Whether to apply stock dividends and other noncash dividends to income or
2229 principal or to apportion them as the fiduciary shall deem advisable; and
2230 (C) What expenses, costs, and taxes, other than estate, inheritance, and succession
2231 taxes and other governmental charges, shall be charged against principal or income or
2232 apportioned between principal and income and in what proportions; <del>and
</del>
2233 (29) To make, modify, and execute contracts and other instruments, under seal or
2234 otherwise, as the fiduciary deems advisable; <ins>and
</ins> 2235 <ins>(30) To endorse, guarantee, become the surety of or otherwise become obligated for or
</ins> 2236 <ins>with respect to the debts or other obligations of a beneficiary or any debt or obligation
</ins> 2237 <ins>incurred for the benefit of a beneficiary, whether with or without consideration, as the
</ins> 2238 <ins>fiduciary deems advisable."
</ins> 2239 SECTION 84.
2240 Said title is further amended by revising Code Section 53-12-262, relating to powers of
2241 corporate fiduciaries, as follows:
2242 "53-12-262.
2243 A corporate fiduciary, without authorization by the court, may exercise the power:
2244 (1) To retain stock or other securities of its own issue received on the creation of the trust
2245 or later contributed to the trust, including the securities into which the securities
2246 originally received or contributed may be converted or <del>which</del> <ins>that</ins> may be derived
2247 therefrom as a result of merger, consolidation, stock dividends, splits, liquidations, and
2248 similar procedures. The corporate fiduciary may exercise by purchase or otherwise any
2249 rights, warrants, or conversion features attaching to any such securities. The authority
2250 described in this paragraph shall:
2251 (A) Apply to the exchange or conversion of stock or securities of the corporate
2252 fiduciary's own issue, <ins>regardless of</ins> whether <del>or not</del> any new stock or securities received
2253 in exchange therefor are substantially equivalent to those originally held;
2254 (B) Apply to the continued retention of all new stock and securities resulting from
2255 merger, consolidation, stock dividends, splits, liquidations, and similar procedures and
2256 received by virtue of such conversion or exchange of stock or securities of the corporate
2257 fiduciary's own issue, <ins>regardless of</ins> whether <del>or not</del> the new stock or securities are
2258 substantially equivalent to those originally received by the fiduciary;
2259 (C) Have reference, inter alia, to the exchange of such stock or securities for stock or
2260 securities of any holding company <del>which</del> <ins>that</ins> owns stock or other interests in one or
2261 more other corporations, including the corporate fiduciary, whether the holding
2262 company is newly formed or already existing and <ins>regardless of</ins> whether <del>or not</del> any of
2263 the corporations own assets identical or similar to the assets of or carry on a business
2264 identical or similar to the corporation whose stock or securities were previously
2265 received by the fiduciary and the continued retention of stock or securities, or both, of
2266 the holding company; and
2267 (D) Apply regardless of whether any of the corporations have officers, directors,
2268 employees, agents, or trustees in common with the corporation whose stock or
2269 securities were previously received by the fiduciary; and
2270 (2) To borrow money from its own banking department for such periods of time and
2271 upon such terms and conditions as to rates, maturities, renewals, and security as the
2272 fiduciary shall deem advisable for <del>the</del> <ins>any</ins> purpose <del>of paying debts, taxes, or other
</del> 2273 <del>charges against the estate or any trust or any part thereof, and to mortgage, pledge, or
</del> 2274 <del>otherwise encumber such portion of the estate or any trust</del> as may be required to secure
2275 the loan or loans; and to renew existing loans either as maker or endorser."
2276 SECTION 85.
2277 Said title is further amended by repealing Code Section 53-12-264, relating to granting of
2278 powers by qualified beneficiaries.
2279 SECTION 86.
2280 Said title is further amended by revising Code Section 53-12-270, relating to exercise of
2281 power by trustee who is also a beneficiary, as follows:
2282 "53-12-270.
2283 (a) Subject to subsection (c) of this Code section, and unless the trust provisions expressly
2284 indicate that a rule in this subsection shall not apply, <ins>a person other than a settlor or donor
</ins> 2285 <ins>who is a beneficiary and either a trustee or trust director of a trust shall not:
</ins> 2286 (1) <del>A person other than a settlor who is a beneficiary and trustee of a trust that confers
</del> 2287 <del>on such trustee a power to make</del> <ins>Make</ins> discretionary distributions to or for <del>such trustee's
</del> 2288 <del>personal</del> <ins>the</ins> benefit <del>may exercise such power only in</del> <ins>of such person unless in</ins> accordance
2289 with an ascertainable standard; <del>and
</del> 2290 (2) <ins>Make discretionary allocations of receipts or expenses as between principal and
</ins> 2291 <ins>income, unless such person acts in a fiduciary capacity whereby such person has no
</ins> 2292 <ins>power to enlarge or shift any beneficial interest except as an incidental consequence of
</ins> 2293 <ins>the discharge of such person's fiduciary duties; and
</ins> 2294 <ins>(3) Make</ins> <del>A trustee shall not exercise a power to make</del> discretionary distributions to
2295 satisfy <del>a</del> <ins>any of such person's</ins> legal <del>obligation</del> <ins>obligations</ins> of support <del>that such trustee
</del> 2296 <del>personally owes another person.
</del> 2297 (b) A power whose exercise is limited or prohibited by subsection (a) of this Code section
2298 may be exercised by a majority of the remaining trustees <ins>or trust directors who have the
</ins> 2299 <ins>power to make or direct discretionary distributions to or for such trustee or trust director
</ins> 2300 <ins>and</ins> whose exercise of such power is not so limited or prohibited. If the power of all
2301 trustees <ins>or trust directors</ins> is so limited or prohibited, the court may appoint a special
2302 fiduciary with authority to exercise the power.
2303 (c) Subsection (a) of this Code section shall not apply to:
2304 (1) A power held by the settlor's <ins>or donor's</ins> spouse who is the trustee <ins>or trust director</ins> of
2305 a trust for which a marital deduction, as defined in Section 2056(b)(5) or 2523(e) of the
2306 federal Internal Revenue Code of 1986, was previously allowed;
2307 (2) Any trust during any period that the trust may be revoked or amended by its settlor;
2308 <del>or
</del>
2309 (3) A trust if contributions to such trust qualify for the annual exclusion under Section
2310 2503(c) of the federal Internal Revenue Code of 1986; <ins>or
</ins> 2311 <ins>(4) Any portion of a trust over which the trustee or trust director is expressly granted in
</ins> 2312 <ins>the trust instrument a presently exercisable or testamentary general power of
</ins> 2313 <ins>appointment.
</ins> 2314 <ins>(d)(1) If a beneficiary of a trust, in an individual, fiduciary, or other capacity, removes
</ins> 2315 <ins>and appoints a successor trustee or trust director who would be related or subordinate to
</ins> 2316 <ins>the beneficiary within the meaning of Section 672(c) of the federal Internal Revenue
</ins> 2317 <ins>Code if the beneficiary were a grantor, the successor trustee or trust director's
</ins> 2318 <ins>discretionary powers shall be limited as follows:
</ins> 2319 <ins>(A) The trustee or trust director's discretionary power to make distributions to or for
</ins> 2320 <ins>the benefit of that beneficiary is limited to an ascertainable standard;
</ins> 2321 <ins>(B) The trustee or trust director's discretionary power shall not be exercised to satisfy
</ins> 2322 <ins>any of that beneficiary's legal obligations for support or other purposes; and
</ins> 2323 <ins>(C) The trustee or trust director's discretionary power shall not be exercised to grant
</ins> 2324 <ins>to the beneficiary a general power to appoint property of the trust to the beneficiary, the
</ins> 2325 <ins>beneficiary's estate, or the creditors thereof within the meaning of Section 2041 of the
</ins> 2326 <ins>federal Internal Revenue Code.
</ins> 2327 <ins>(2) This subsection shall not apply if the appointment of the trustee or trust director by
</ins> 2328 <ins>the beneficiary may be made only in conjunction with another person having a substantial
</ins> 2329 <ins>interest in the property of the trust subject to the power that is adverse to the exercise of
</ins> 2330 <ins>the power in favor of the beneficiary within the meaning of Section 2041 (b)(1)(C)(ii) of
</ins> 2331 <ins>the federal Internal Revenue Code."
</ins> 2332 SECTION 87.
2333 Said title is further amended by revising subsection (d) of and by adding a new subsection
2334 to Code Section 53-12-301, relating to actions for breach of trust, to read as follows:
2335 "(d) <ins>If the settlor of a trust provides for both charitable and noncharitable purposes, the
</ins> 2336 <ins>settlor or a donor may maintain a civil action to enforce the charitable purposes of the trust.
</ins> 2337 <ins>(e)</ins> The provision of remedies for breach of trust shall not prevent resort to any other
2338 appropriate remedy provided by statute or common law."
2339 SECTION 88.
2340 Said title is further amended by revising subsection (a) of Code Section 53-12-307, relating
2341 to limitation of actions, as follows:
2342 "(a) Unless a claim is previously barred by adjudication, consent, limitation, or otherwise,
2343 if a beneficiary <del>has received a written report</del> <ins>was sent a written report</ins> that adequately
2344 <del>discloses</del> <ins>disclosed</ins> the existence of a claim against the trustee for a breach of trust, the
2345 claim shall be barred as to that beneficiary unless a proceeding to assert the claim is
2346 commenced within two years after <del>receipt of the report</del> <ins>the date the beneficiary was sent
</ins> 2347 <ins>such report.</ins> A report adequately discloses existence of a claim if it provides sufficient
2348 information so that the beneficiary knows of such claim or reasonably should have inquired
2349 into the existence of such claim. If the beneficiary <del>has not received a report which</del> <ins>was not
</ins> 2350 <ins>sent a report that</ins> adequately <del>discloses</del> <ins>disclosed</ins> the existence of a claim against the trustee
2351 for a breach of trust, such claim shall be barred as to that beneficiary unless a proceeding
2352 to assert such claim is commenced within six years after the beneficiary discovered, or
2353 reasonably should have discovered, the subject of such claim."
2354 SECTION 89.
2355 Said title is further amended by revising subsection (a) of Code Section 53-12-320, relating
2356 to nonresidents acting as trustees, as follows:
2357 "(a) Any nonresident who is eligible to serve as a trustee under Code Section <del>53-12-201
</del> 2358 <ins>7-1-242, Part 1 of Article 11 of this chapter, or other applicable law</ins> may act as a trustee in
2359 this state pursuant to the terms of this Code section."
2360 SECTION 90.
2361 Said title is further amended by revising subsection (a) of Code Section 53-12-321, relating
2362 to foreign entities acting as trustees, as follows:
2363 "(a) Any foreign entity may act in this state as <ins>a</ins> trustee, <del>executor,</del> <ins>trust director, personal
</ins> 2364 <ins>representative, temporary</ins> administrator, <ins>conservator, or</ins> guardian, or <ins>in</ins> any other like or
2365 similar fiduciary capacity, whether the appointment is by law, will, deed, inter vivos trust,
2366 security deed, mortgage, deed of trust, court order, or otherwise without the necessity of
2367 complying with any law of this state relating to the qualification of foreign entities to do
2368 business in this state or the licensing of foreign entities to do business in this state, except
2369 as provided in this article, and notwithstanding any prohibition, limitation, or restriction
2370 contained in any other law of this state, provided only that the foreign entity is authorized
2371 to act in the fiduciary capacity in the state in which it is chartered or licensed or, if the
2372 foreign entity is a national banking association, in the state in which it has its principal
2373 place of business."
2374 SECTION 91.
2375 Said title is further amended by revising subsection (c) of Code Section 53-12-323, relating
2376 to filing statement with Secretary of State and appointment of agent for service, as follows:
2377 "(c) Any foreign entity that acts as a trustee <ins>or trust director</ins> in this state shall be deemed
2378 to have consented to service upon the Secretary of State of any summons, notice, or process
2379 in connection with any action or proceeding in the courts of this state growing out of or
2380 based upon any act or failure to act on the part of the trustee <ins>or trust director</ins> unless the
2381 trustee <ins>or trust director</ins> shall designate as the agent for such service some person who may
2382 be found and served with notice, summons, or process in this state by a designation to be
2383 filed, from time to time, in the office of the Secretary of State, giving the name of the agent
2384 and the place in this state where the agent may be found and served."
2385 SECTION 92.
2386 Said title is further amended by revising subsections (b), (g), and (j) of Code Section
2387 53-12-362, relating to conversion to unitrust, as follows:
2388 "(b)(1) The trustee may petition the <del>superior</del> court to order the conversion to a unitrust.
2389 (2) A beneficiary may request a trustee to convert to a unitrust. If the trustee does not
2390 convert, the beneficiary may petition the <del>superior</del> court to order the conversion.
2391 (3) The court shall order conversion if <del>the</del> <ins>such</ins> court concludes that the conversion will
2392 enable the trustee to better carry out the intent of the settlor or testator and the purposes
2393 of the trust."
2394 "(g) The trustee or, if the trustee declines to do so, a beneficiary may petition the <del>superior
</del> 2395 court to:
2396 (1) Select a payout percentage different from 4 percent but not lower than 3 percent or
2397 higher than 5 percent;
2398 (2) Provide for a distribution of net income, as would be determined if the trust were not
2399 a unitrust, in excess of the unitrust distribution if such distribution is necessary to
2400 preserve a tax benefit;
2401 (3) Average the valuation of the trust's net assets over a period other than three years; or
2402 (4) Reconvert from a unitrust. Upon a reconversion, the power to adjust under Code
2403 Section 53-12-361 shall be revived."
2404 "(j)(1) If paragraph (3) or (4) of subsection (i) of this Code section applies to a trustee
2405 and there is more than one trustee, a cotrustee to whom such provision does not apply
2406 may convert the trust unless the exercise of the power by the remaining trustee is
2407 prohibited by the governing trust instrument.
2408 (2) If paragraph (3) or (4) of subsection (i) of this Code section applies to all the trustees,
2409 the trustees may petition the <del>superior</del> court to direct a conversion."
2410 SECTION 93.
2411 Said title is further amended by revising paragraphs (2) and (3) of Code Section 53-12-500,
2412 relating to definitions regarding trust directors, as follows:
2413 "(2) 'Power of appointment' means a power that enables a person, acting in a
2414 nonfiduciary capacity, to:
2415 (A) Designate a recipient of either an ownership interest in or another power of
2416 appointment over trust property;
2417 (B) Rescind or terminate either an ownership interest in or another power of
2418 appointment over trust property; <del>and</del> <ins>or
</ins> 2419 (C) Determine when a beneficiary shall have the rights granted under Code Sections
2420 53-12-242 and 53-12-243 or similar rights granted under the <del>governing</del> <ins>trust</ins> instrument.
2421 (3) 'Power of direction' means a power over a trust granted to a person by the trust
2422 instrument to the extent the power is exercisable in a capacity other than as a trustee.
2423 Such term includes a power over the administration of the trust or the investment,
2424 management, or distribution of the trust property; a power to consent to a trustee's
2425 actions, whether through exercise of an affirmative power to consent or through
2426 nonexercise of a veto power over a trustee's actions, where a trustee may not act without
2427 such consent; and all further powers appropriate to the exercise or nonexercise of such
2428 powers held by the trust director pursuant to subsection (a) of Code Section 53-12-502.
2429 Such term shall exclude the powers described in subsection (b) of Code Section
2430 53-12-501 <ins>and the power of a person designated in a trust instrument to receive notice
</ins> 2431 <ins>and provide consent pursuant to paragraph (6) of subsection (f) of Code Section 53-12-8."
</ins> 2432 SECTION 94.
2433 Said title is further amended by revising paragraph (5) of subsection (b) of Code Section
2434 53-12-501, relating to application of article and construction of trust instrument, as follows:
2435 "(5) A power over a trust if both:
2436 (A) The trust instrument provides such power is held in a nonfiduciary capacity; and
2437 (B) Such power <del>is</del> <ins>must be</ins> held in a nonfiduciary capacity to achieve the settlor's tax
2438 objectives."
2439 SECTION 95.
2440 Said title is further amended by revising Code Section 53-12-506, relating to statutory
2441 provisions applicable to trust directors, defenses available to trust directors, personal
2442 jurisdiction, and term "trustee" includes trust director where required or permitted, as
2443 follows:
2444 "53-12-506.
2445 (a) An individual shall be eligible to serve as a trust director regardless of citizenship <del>and
</del> 2446 <ins>or</ins> residency. If the trust director is a corporation, partnership, or other entity, it shall be
2447 required to have the power to act as a trustee in Georgia.
2448 (b) The rules applicable to a trustee apply to a trust director regarding:
2449 (1) Jurisdiction under Code Section 53-12-6;
2450 (2) <ins>All matters governed by Article 11 of this chapter, including, but not limited to,
</ins> 2451 <ins>appointment</ins> <del>Appointment</del> and acceptance, compensation, and resignation and removal
2452 <del>of trustees under Article 11 of this chapter;</del> <ins>and
</ins> 2453 (3) Accounting under Article 12 of this chapter; <del>and.
</del> 2454 <del>(4) Nonresidents and foreign entities acting as trustees under Article 15 of this chapter.
</del> 2455 <del>(c) In an action against a trust director for breach of trust, the trust director may assert the
</del> 2456 <del>same defenses a trustee in a like position and under similar circumstances could assert in
</del> 2457 <del>an action for breach of trust against the trustee.
</del> 2458 <del>(d) By accepting appointment as a trust director of a trust subject to this article, a trust
</del> 2459 <del>director submits to personal jurisdiction of the courts of this state regarding any matter
</del>
2460 <del>related to a power or duty of a trust director. This subsection shall not preclude use of
</del> 2461 <del>another method to obtain jurisdiction over a trust director.
</del> 2462 <del>(e) As used in this Code, where the context requires or permits, the term 'trustee' includes
</del> 2463 <del>a trust director."
</del> 2464 SECTION 96.
2465 Said title is further amended by adding a new article to Chapter 12, relating to trusts, to read
2466 as follows:
2467 <ins>"ARTICLE 19
</ins> 2468 <ins>53-12-510.
</ins> 2469 <ins>As used in this article, the term:
</ins> 2470 <ins>(1) 'Electronic' means relating to technology having electrical, digital, magnetic,
</ins> 2471 <ins>wireless, optical, electromagnetic, or similar capabilities.
</ins> 2472 <ins>(2) 'Electronic address' means a unique username or other identifier, commonly
</ins> 2473 <ins>expressed as a string of characters or numbers, at which information may be received by
</ins> 2474 <ins>electronic means and shall include, but shall not be limited to, an email or internet
</ins> 2475 <ins>address, and any other information system or portion thereof, designed for the exchange
</ins> 2476 <ins>of information among parties.
</ins> 2477 <ins>(3) 'Electronic portal' means a website or other similar electronic service through which
</ins> 2478 <ins>a person may retrieve information.
</ins> 2479 <ins>(4) 'Electronic record' means a record created, generated, sent, communicated, received,
</ins> 2480 <ins>or stored by electronic means.
</ins> 2481 <ins>(5) 'Electronic signature' means an electronic symbol or process attached to or logically
</ins> 2482 <ins>associated with a record and executed or adopted by a person with the intent to sign the
</ins> 2483 <ins>record.
</ins>
2484 <ins>(6) 'Information' includes data, text, images, codes, computer programs, software, and
</ins> 2485 <ins>data bases.
</ins> 2486 <ins>(7) 'Record' means information:
</ins> 2487 <ins>(A) Inscribed on a tangible medium; or
</ins> 2488 <ins>(B) Stored in an electronic or other medium and retrievable in perceivable form.
</ins> 2489 <ins>(8) 'Security procedure' means a procedure applied to verify that an electronic signature,
</ins> 2490 <ins>record, or performance is that of a specific person or to detect a change or error in an
</ins> 2491 <ins>electronic record. Such term includes a procedure that uses an algorithm, code,
</ins> 2492 <ins>identifying word or number, encryption, or callback or other acknowledgment procedure.
</ins> 2493 <ins>(9) 'Sign' means, with present intent to authenticate or adopt a record:
</ins> 2494 <ins>(A) Execute or adopt a tangible symbol; or
</ins> 2495 <ins>(B) Attach to or logically associate with the record an electronic signature.
</ins> 2496 <ins>53-12-511.
</ins> 2497 <ins>(a) This Code section shall govern notice to a person or the sending of a record to a person
</ins> 2498 <ins>under this chapter, under the provisions of a trust instrument, or with respect to any matter
</ins> 2499 <ins>involving a trust. This Code section shall not govern whether notice or the sending of a
</ins> 2500 <ins>record complied with any duties relating to the privacy, confidentiality, or security of a
</ins> 2501 <ins>notice or record.
</ins> 2502 <ins>(b) Notice to a person or the sending of a record to a person shall be accomplished in a
</ins> 2503 <ins>manner that is likely to result in receipt of the notice or record and reasonably suitable
</ins> 2504 <ins>under the circumstances.
</ins> 2505 <ins>(c) Without limitation, the manner of notice to a person or the sending of a record to a
</ins> 2506 <ins>person shall be presumed likely to result in receipt of the notice or record, unless proven
</ins> 2507 <ins>otherwise by clear and convincing evidence, if accomplished by:
</ins> 2508 <ins>(1) Personal delivery;
</ins>
2509 <ins>(2) Registered or certified mail or statutory overnight delivery to either the person's last
</ins> 2510 <ins>known place of residence or place of business or the address last used by the person to
</ins> 2511 <ins>receive notices or records;
</ins> 2512 <ins>(3) An electronic address the person has consented to use to receive notices or records;
</ins> 2513 <ins>or
</ins> 2514 <ins>(4)(A) An electronic portal if:
</ins> 2515 <ins>(i) The person has been granted access to an electronic portal and informed that
</ins> 2516 <ins>notices and records will be made available in the electronic portal;
</ins> 2517 <ins>(ii) The notice or record is made available in the electronic portal;
</ins> 2518 <ins>(iii) Concurrently with or subsequently to the notice or record being made available
</ins> 2519 <ins>in the electronic portal, the person is notified that one or more notices or records have
</ins> 2520 <ins>been made available in the electronic portal; and
</ins> 2521 <ins>(iv) For a period of at least 90 days after the date on which the person was notified
</ins> 2522 <ins>as provided in division (iii) of this subparagraph, the person's access to the electronic
</ins> 2523 <ins>portal is not terminated without his or her consent and the notice or record remains
</ins> 2524 <ins>available in the electronic portal.
</ins> 2525 <ins>(B) If the person objects to notices or the sending of records by means of an electronic
</ins> 2526 <ins>address or electronic portal, then notice or the sending of a record by such means shall
</ins> 2527 <ins>not be presumed likely to result in receipt of the notice or record.
</ins> 2528 <ins>(d) If a record was sent to a beneficiary solely by means of an electronic portal and the
</ins> 2529 <ins>existence of a claim would not have been adequately disclosed to the beneficiary for
</ins> 2530 <ins>purposes of Code Section 53-12-307 but for the sending of the record, the running of the
</ins> 2531 <ins>limitations period under Code Section 53-12-307 for such claim shall be tolled if the
</ins> 2532 <ins>beneficiary's access to the electronic portal is terminated without his or her consent or the
</ins> 2533 <ins>record is no longer available in the electronic portal; provided, however, that the period
</ins> 2534 <ins>shall not be tolled if, within 30 days after such event, the beneficiary is notified of an
</ins> 2535 <ins>alternative means by which to obtain the record. If the limitations period is tolled, the
</ins>
2536 <ins>period shall recommence on the date on which the record is resent to the beneficiary,
</ins> 2537 <ins>whether by means of an electronic portal or otherwise.
</ins> 2538 <ins>(e)(1) For purposes of subsections (c) and (d) of this Code section:
</ins> 2539 <ins>(A) Without limitation, a person consents to the use of an electronic address to receive
</ins> 2540 <ins>notices and records from:
</ins> 2541 <ins>(i) Any person with respect to any matter involving a particular trust, by providing
</ins> 2542 <ins>the electronic address to any other person to be used to receive notices and records
</ins> 2543 <ins>with respect to any matters involving such trust, regardless of whether such other
</ins> 2544 <ins>person is the person providing notice or sending the record; and
</ins> 2545 <ins>(ii) A particular person with respect to any matter involving any trust, by providing
</ins> 2546 <ins>the electronic address to such person to receive such notices and records with respect
</ins> 2547 <ins>to any matters involving a trust, regardless of whether such trust is the trust to which
</ins> 2548 <ins>the notice or record relates; and
</ins> 2549 <ins>(B) The use of an electronic address by a person with respect to any matter involving
</ins> 2550 <ins>a trust shall constitute a provision of the electronic address with respect to the trust
</ins> 2551 <ins>under division (i) of subparagraph (A) of this paragraph and the use of an electronic
</ins> 2552 <ins>address to communicate with another person with respect to any matter involving a trust
</ins> 2553 <ins>shall constitute a provision of the electronic address to the other person under division
</ins> 2554 <ins>(ii) of subparagraph (A) of this paragraph.
</ins> 2555 <ins>(2) Requiring a person to take steps to activate his or her account in an electronic portal
</ins> 2556 <ins>or take other similar actions to establish access to an electronic portal shall not prevent
</ins> 2557 <ins>the person from having been granted access to the electronic portal.
</ins> 2558 <ins>(3) A notice or record shall not be considered to have been made available in an
</ins> 2559 <ins>electronic portal unless a person who has been granted access to the electronic portal can
</ins> 2560 <ins>download or otherwise preserve a copy of the notice or record outside of the electronic
</ins> 2561 <ins>portal.
</ins>
2562 <ins>(4) If a notice or record is made available in an electronic portal but the notice required
</ins> 2563 <ins>by division (c)(4)(A)(iii) of this Code section is not provided to a person who has been
</ins> 2564 <ins>granted access to the electronic portal, such notice shall be deemed provided to such
</ins> 2565 <ins>person on the next date on which the person accesses the electronic portal.
</ins> 2566 <ins>(5) A person's access to an electronic portal shall not be considered to have been
</ins> 2567 <ins>terminated without his or her consent solely because such person is required to change
</ins> 2568 <ins>or reset his or her password or take other similar actions to preserve his or her access.
</ins> 2569 <ins>(f) With respect to whether notice or the sending of a record to a person was reasonably
</ins> 2570 <ins>suitable under the circumstances:
</ins> 2571 <ins>(1) For purposes of Code Section 53-12-307 providing for the limitation of actions, the
</ins> 2572 <ins>sending of a record to a person in a manner that is likely to result in receipt shall be
</ins> 2573 <ins>presumed to have been accomplished in a manner that was reasonably suitable under the
</ins> 2574 <ins>circumstances unless proven otherwise by clear and convincing evidence; and
</ins> 2575 <ins>(2) For all other purposes, whether notice or the sending of a record to a person was
</ins> 2576 <ins>accomplished in a manner reasonably suitable under the circumstances shall be
</ins> 2577 <ins>determined, without limitation, in the context of the subject matter of the notice or record,
</ins> 2578 <ins>the length of any time period imposed with respect to notice or sending of the record, the
</ins> 2579 <ins>circumstances of the person, the sender's knowledge of those circumstances, and when
</ins> 2580 <ins>actual receipt, if any, occurred.
</ins> 2581 <ins>(g) Notice to a person or the sending of a record to a person shall be deemed:
</ins> 2582 <ins>(1) To have been accomplished on the date such person has actual knowledge of the
</ins> 2583 <ins>contents of the notice or record; and
</ins> 2584 <ins>(2) Not to have been accomplished if the person providing notice or sending a record has
</ins> 2585 <ins>actual knowledge the person did not receive the notice or record.
</ins> 2586 <ins>(h) Notice or the sending of a record to a person otherwise required under this chapter or
</ins> 2587 <ins>the trust instrument:
</ins>
2588 <ins>(1) Need not be provided to a person whose identity or location is unknown to and not
</ins> 2589 <ins>reasonably ascertainable by the trustee, trust director, or other person required to provide
</ins> 2590 <ins>the notice or send the record; and
</ins> 2591 <ins>(2) May be waived by the person to be notified or sent the record.
</ins> 2592 <ins>(i) An action by a trustee, trust director, or other person authorized under this chapter or
</ins> 2593 <ins>a trust instrument to act with respect to any matter involving a trust shall not be ineffective
</ins> 2594 <ins>because of a failure to provide notice required under this chapter or the trust instrument if
</ins> 2595 <ins>such person acted with reasonable care to comply with this Code section.
</ins> 2596 <ins>(j) Notice of a judicial proceeding shall be provided as required by the applicable rules of
</ins> 2597 <ins>civil procedure.
</ins> 2598 <ins>(k) This Code section shall be construed and applied to be consistent with reasonable
</ins> 2599 <ins>practices concerning the use of electronic addresses and electronic portals to provide notice
</ins> 2600 <ins>and send records for matters involving trusts and the continued expansion of those
</ins> 2601 <ins>practices.
</ins> 2602 <ins>53-12-512.
</ins> 2603 <ins>(a) This Code section shall apply to all records and signatures relating to trusts, except a
</ins> 2604 <ins>writing and signature creating or declaring an express trust under Code Section 53-12-20,
</ins> 2605 <ins>including, but not limited to:
</ins> 2606 <ins>(1) Exercises, delegations, determinations, releases, waivers, renunciations, disclaimers,
</ins> 2607 <ins>and all other actions related to powers and rights granted under this chapter or a trust
</ins> 2608 <ins>instrument;
</ins> 2609 <ins>(2) Notices and records required to be provided or sent by this chapter or the provisions
</ins> 2610 <ins>of a trust instrument, including, but not limited to, notices under Code Section 53-12-242,
</ins> 2611 <ins>reports and accounts under Code Section 53-12-243, and accountings under Article 12
</ins> 2612 <ins>of this chapter;
</ins>
2613 <ins>(3) Binding nonjudicial settlement agreements under Code Section 53-12-9 or other
</ins> 2614 <ins>applicable law, including agreements that modify a trust instrument;
</ins> 2615 <ins>(4) Notices of a trustee's decision to exercise the power to distribute income or principal
</ins> 2616 <ins>of a trust under Code Section 53-12-62 or other applicable law;
</ins> 2617 <ins>(5) Consents to actions by and the release from liability of a trustee or trust director;
</ins> 2618 <ins>(6) Reports described in Code Section 53-12-307; and
</ins> 2619 <ins>(7) Certifications of a trust under Code Section 53-12-280.
</ins> 2620 <ins>(b) This Code section shall be construed and applied to facilitate electronic records and
</ins> 2621 <ins>electronic signatures consistent with other law and to be consistent with reasonable
</ins> 2622 <ins>practices concerning electronic records and electronic signatures and continued expansion
</ins> 2623 <ins>of those practices.
</ins> 2624 <ins>(c) This Code section shall not invalidate an electronic record or electronic signature that
</ins> 2625 <ins>is valid under other applicable law.
</ins> 2626 <ins>(d)(1) A record or signature shall not be denied legal effect or enforceability solely
</ins> 2627 <ins>because it is in electronic form.
</ins> 2628 <ins>(2) If other laws of this state or a trust instrument require a record to be in writing, an
</ins> 2629 <ins>electronic record satisfies the requirement.
</ins> 2630 <ins>(3) If other laws of this state or a trust instrument require a signature to be in writing, an
</ins> 2631 <ins>electronic signature satisfies the requirement.
</ins> 2632 <ins>(e)(1) An electronic record or electronic signature is attributable to a person if it was the
</ins> 2633 <ins>act of the person. The act of the person may be shown in any manner, including, but not
</ins> 2634 <ins>limited to, showing the efficacy of a security procedure applied to determine the person
</ins> 2635 <ins>to which the electronic record or electronic signature was attributable.
</ins> 2636 <ins>(2) The effect of attribution to a person under paragraph (1) of this subsection of a record
</ins> 2637 <ins>or signature shall be determined from the context and surrounding circumstances at the
</ins> 2638 <ins>time of its creation, execution, or adoption and as provided by other law.
</ins>
2639 <ins>(f) If other laws of this state or a trust instrument require a record or signature to be
</ins> 2640 <ins>acknowledged or notarized, the requirement shall be satisfied if the signature of the
</ins> 2641 <ins>individual performing the acknowledgement or notarization, together with all other
</ins> 2642 <ins>information required to be included under other laws of this state or the trust instrument,
</ins> 2643 <ins>is attached to or logically associated with the electronic record or electronic signature.
</ins> 2644 <ins>(g) A person may create a certified paper copy of an electronic record by affirming under
</ins> 2645 <ins>penalty of perjury that the paper copy is a complete and accurate copy of the record.
</ins> 2646 <ins>(h) If other laws of this state or a trust instrument require a record to be retained,
</ins> 2647 <ins>transmitted, copied, or filed:
</ins> 2648 <ins>(1) The requirement shall be satisfied by retaining, transmitting, copying, or filing an
</ins> 2649 <ins>electronic record that:
</ins> 2650 <ins>(A) Accurately reflects the information in the record after it was first generated in final
</ins> 2651 <ins>form as an electronic record or as a certified paper copy under this Code section; and
</ins> 2652 <ins>(B) Remains accessible to the extent required by the other laws of this state or a trust
</ins> 2653 <ins>instrument;
</ins> 2654 <ins>(2) The requirement to retain a record shall not apply to information the sole purpose of
</ins> 2655 <ins>which is to enable the record to be sent, communicated, or received;
</ins> 2656 <ins>(3) A person may satisfy paragraph (1) of this subsection by using the services of another
</ins> 2657 <ins>person;
</ins> 2658 <ins>(4) A requirement that a record be presented or retained in its original form shall be
</ins> 2659 <ins>satisfied by an electronic record retained in accordance with this subsection; and
</ins> 2660 <ins>(5) This subsection shall not preclude a governmental agency from specifying
</ins> 2661 <ins>requirements for the retention of a record subject to the agency's jurisdiction in addition
</ins> 2662 <ins>to those in this subsection.
</ins> 2663 <ins>(i) Evidence relating to a record or a signature may not be excluded in a judicial
</ins> 2664 <ins>proceeding solely because it is in electronic form.
</ins>
2665 <ins>53-12-513.
</ins> 2666 <ins>The provisions of this chapter conform to the requirements of Section 102 of the Electronic
</ins> 2667 <ins>Signatures in Global and National Commerce Act, 15 U.S.C. Section 7002, and supersede,
</ins> 2668 <ins>modify, and limit the requirements of such act."
</ins> 2669 SECTION 97.
2670 All laws and parts of laws in conflict with this Act are repealed.